Citation Nr: 21075913 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 20-08 735 DATE: December 21, 2021 ORDER An effective date earlier than January 29, 2013 for the award of service connection for left lower extremity radiculopathy is denied. An effective date earlier than June 8, 2017 for the award of an 80 percent rating for narcolepsy with cataplexy and sleep paralysis is denied. An effective date earlier than June 8, 2017 for the award of a 20 percent rating for benign prostatic hypertrophy, prostatitis, and hypotonic bladder is denied. An effective date earlier than June 8, 2017 for the award of a 20 percent rating for lumbar spine degenerative arthritis is denied. An effective date earlier than June 8, 2017 for the award of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. VA received the Veteran's claim for a TDIU on June 8, 2017. 2. There was no pending claim for a TDIU, for service connection for left lower extremity radiculopathy, or for increased ratings for any of the disabilities on appeal prior to June 8, 2017. 3. It was not factually ascertainable that an increase in disability of narcolepsy with cataplexy and sleep paralysis was shown within the one-year period prior to June 8, 2017 based upon the applicable legal criteria and the evidence of record. 4. It was not factually ascertainable that an increase in disability of benign prostatic hypertrophy, prostatitis, and hypotonic bladder was shown within the one-year period prior to June 8, 2017 based upon the applicable legal criteria and the evidence of record. 5. It was not factually ascertainable that an increase in disability of lumbar spine degenerative arthritis was shown within the one-year period prior to June 8, 2017 based upon the applicable legal criteria and the evidence of record. 6. It was not factually ascertainable that the Veteran's service-connected disabilities precluded him from substantially gainful employment within the one-year period prior to June 8, 2017 based upon the applicable legal criteria and the evidence of record. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 29, 2013 for the award of service connection for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.400. 2. The criteria for an effective date earlier than June 8, 2017 for the award of an 80 percent rating for narcolepsy with cataplexy and sleep paralysis are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.400. 3. The criteria for an effective date earlier than June 8, 2017 for the award of a 20 percent rating for benign prostatic hypertrophy, prostatitis, and hypotonic bladder are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.400. 4. The criteria for an effective date earlier than June 8, 2017 for the award of a 20 percent rating for lumbar spine degenerative arthritis are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.400. 5. The criteria for an effective date earlier than June 8, 2017 for the award of a TDIU are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. At that time, he requested that the record be held open for 60 days to allow for the submission of additional evidence. A day after the hearing, the Veteran's representative requestrf a copy of the hearing transcript. In February 2021, the representative submitted additional argument in support of his appeal. Later that month, the representative made a second request for a copy of the transcript. In March 2021, the Board sent the Veteran and his representative a copy of the transcript. In April 2021, the representative made a third request for a transcript. However, in August 2021, another attorney from the representative's firm stated that the Veteran is anxious for a decision and asked if anything else was needed for a decision to be made. Thus, it appears that the representative later received the copy of the transcript that was sent in March 2021. The representative has not since made a fourth request for a copy of the transcript, which the record indicates she would have done given her history of correspondences. In any event, the Board will construe the August 2021 letter as waiving any pending request and proceed with the adjudication of the Veteran's appeal. In November 2020, the Veteran's representative requested a copy of an August 2017 VA examiner's personnel file or curriculum vitae. As will be discussed herein, the earlier effective date claims are being denied due to the lack of legal merit (lack of entitlement under the law). Thus, the requested information has no bearing on these claims, and a remand to provide such is not warranted. Effective Dates The effective date for an award of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Specific to claims for increased disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise, the effective date will be the later of the date of receipt of claim or date entitlement arose. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). A TDIU claim is essentially a claim for an increased rating. A claim is a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p). Service connection for left lower extremity radiculopathy VA received the Veteran's application for increased compensation based on unemployability (a TDIU claim) on June 8, 2017. In adjudicating the claim for an increased rating for the service-connected low back disability in an August 2017 rating action, the Agency of Original Jurisdiction (AOJ) also granted service connection for associated left lower extremity radiculopathy on a secondary basis and assigned an effective date of January 29, 2013. In assigning this effective date (rather than the date of June 8, 2017the date of claim for a TDIU), the AOJ cited to the report of a January 29, 2013 VA examination, which first showed a diagnosis of the disorder. The AOJ determined that January 29, 2013 was the date that entitlement to the benefit arose. The effective date for an award of service connection is the later of the date of receipt of the claim or the date entitlement arose. Here, the June 8, 2017 date of claim for a TDIU that resulted in the grant of benefits at issue is the later date. However, the Board will not disturb this favorable finding. As the Veteran has already been assigned a more favorable effective date than what was shown by the record, an even earlier effective date is not warranted. While the Board is sympathetic to the Veteran's situation, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Veteran has been assigned an effective date that is more favorable than the date of the June 8, 2017 claim for a TDIU that resulted in the grant of benefits at issue. The record does not show, and the Veteran does not assert, that he filed an earlier claim for a TDIU or left lower extremity radiculopathy specifically. Accordingly, the Board concludes that an effective date earlier than January 29, 2013 for the award of service connection for left lower extremity radiculopathy is not warranted. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). 80 percent rating for narcolepsy with cataplexy and sleep paralysis 20 percent rating for benign prostatic hypertrophy, prostatitis, and hypotonic bladder 20 percent rating for lumbar spine degenerative arthritis TDIU As noted above, VA received the Veteran's claim for a TDIU on June 8, 2017. All the remaining claims stem from the TDIU claim. In the August 2017 rating decision, the AOJ increased the rating for narcolepsy with cataplexy and sleep paralysis to 80 percent; increased the rating for benign prostatic hypertrophy, prostatitis, and hypotonic bladder to 20 percent; increased the rating for lumbar spine degenerative arthritis to 20 percent; and granted a TDIU. The AOJ assigned an effective date of June 8, 2017, based on the date of receipt of the TDIU claim. The Veteran has been assigned an effective date based on of the date of receipt of his claim for a TDIU. The record does not show, and the Veteran does not assert, that he filed an earlier claim for a TDIU or for an increased rating for any of the disabilities on appeal. There was no pending claim for a TDIU or an increase for any of the disabilities on appeal prior to June 8, 2017. The Board has considered whether the receipt of medical records indicating an increase in any of the disabilities on appeal may be used to establish an effective date for retroactive benefits based on facts found of an increase in a disability. However, no medical records were received during the one-year period prior to June 8, 2017. As the controlling date is the later of the date of claim and the date entitlement arose, an earlier award based on this regulation is not warranted. Thus, the Board finds that it was not factually ascertainable that an increase in disability of narcolepsy with cataplexy and sleep paralysis, benign prostatic hypertrophy, prostatitis, hypotonic bladder, or lumbar spine degenerative arthritis was shown within the one-year period prior to June 8, 2017 based upon the applicable legal criteria and the evidence of record. The Board also finds that it was not factually ascertainable that the Veteran's service-connected disabilities precluded him from substantially gainful employment within the one-year period prior to June 8, 2017 based upon the applicable legal criteria and the evidence of record. Accordingly, the Board concludes that an effective date earlier than June 8, 2017 for the awards of an 80 percent rating for narcolepsy with cataplexy and sleep paralysis; a 20 percent rating for benign prostatic hypertrophy, prostatitis, and hypotonic bladder; a 20 percent rating for lumbar spine degenerative arthritis; and a TDIU is not warranted. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis, 6 Vet. App. 426. The Board regrets that a more favorable decision cannot be reached but is bound by the applicable laws and regulations. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.