Citation Nr: 21076954 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-06 649 DATE: December 28, 2021 ORDER Entitlement to an earlier effective date of September 23, 2002 for the grant of service connection for radiculopathy of the bilateral lower extremities is granted. Entitlement to an effective date earlier than February 29, 2012 for the grant of service connection for reactive airway disease, residual of pneumothorax, is denied. FINDINGS OF FACT 1. Competent evidence of record shows evidence of bilateral lower extremity radiculopathy as early as September 23, 2002; on that date, VA adopted regulations under which neurological manifestations of spine disabilities are to be rated separately under the appropriate diagnostic codes. 2. The Veteran's claim for service connection for a respiratory condition was denied in a March 2007 rating decision. The Veteran was notified in April 2007 and submitted a timely Notice of Disagreement (NOD). Following the issuance of a January 2010 Statement of the Case (SOC), the Veteran did not timely perfect her appeal through the submission of a VA Form 9. Accordingly, the March 2007 rating decision became final. 3. The Veteran's request to reopen the previously denied claim of entitlement to service connection for a respiratory condition was received by VA on February 29, 2012. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of September 23, 2002 for the grant of service connection for radiculopathy of the bilateral lower extremities are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.71a. 2. The criteria for an effective date earlier than February 29, 2012, for the grant of service connection for reactive airway disease, residual of pneumothorax, are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1977 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2015 and September 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing is of record. Effective Dates Entitlement to an earlier effective date for the grant of service connection for radiculopathy of the bilateral lower extremities The Veteran contends that she is entitled to an earlier effective date in September 2000 for her bilateral lower extremity radiculopathy based on medical records reflecting the existence of the condition as early as September 1990. The RO assigned October 16, 2014 as the effective date for radiculopathy as the date of the first clinical diagnosis of the condition. The Veteran testified at the August 2021 Board hearing that she started experiencing radicular pain in service and continued to experience it after her discharge. The lay testimony and medical evidence reflect the existence of radiculopathy in the Veteran's bilateral lower extremities prior to the October 16, 2014 effective date assigned by the RO. Specifically, a December 1990 private treatment note indicated that the Veteran experienced "intermittent tingling and numbness in both lower extremities." An April 2000 private treatment record noted that the Veteran had back pain "with some radicular symptoms." VA treatment records include reports and findings of radicular symptoms in February 2005, December 2006, January 2007 and December 2008. A September 2008 nerve study was "supportive of right radiculopathy." The Veteran also reported that she experienced daily back pain that included intermittent numbness on the right and left lower extremities to a September 2004 VA examiner. The Veteran's spine disability is assigned a 20 percent rating, effective September 6, 2000. On September 23, 2002, VA effectively amended the rating criteria for spine disabilities. See 68 Fed. Reg. 51454 (2003). Under the newly adopted (and still current) criteria, neurological manifestations are to be assigned separate ratings under the appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). This provision did not exist prior to September 23, 2002. Thus, the Veteran cannot benefit from it prior to that date. As noted, the evidence of record establishes that the Veteran testified and reported to treatment providers that she has experienced lumbar radiculopathy since service. Also, VA received the Veteran's most recent claim for service connection for a lower back condition on September 6, 2000. As the competent medical and lay evidence supports the finding of radiculopathy prior to the effective date allowing separate ratings for radiculopathy, the Veteran is entitled to September 23, 2002 as the effective date for her bilateral lower extremity radiculopathy. As separate ratings for radiculopathy as part of a spine disability were not available prior to September 23, 2002, an earlier effective date cannot be assigned without a separate claim for radiculopathy of the bilateral lower extremities. The record does not reflect receipt of an informal or formal claim for bilateral lower extremity radiculopathy prior to that date. Accordingly, an even earlier effective date is not warranted. Entitlement to an earlier effective date for the grant of service connection for reactive airway disease, residual of pneumothorax The Veteran contends that service connection for a respiratory condition should be granted as of the date of her August 9, 2005 claim. According to the Veteran, she continuously prosecuted that claim. The record reflects that the August 9, 2005 claim was denied in a March 2007 rating decision. The Veteran was notified of the decision in April 2007 and filed a timely NOD. Following the issuance of a January 2010 SOC, the Veteran did not timely perfect her appeal through the submission of a VA Form 9. Accordingly, the March 2007 rating decision became final. 38 C.F.R. § 20.1103. VA received the Veteran's request to reopen the claim on February 29, 2012. The proper effective date for a claim based on new and material evidence other than service medical records is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C. § 5110(i); 38 C.F.R. § 3.400(q)(2), (r). As the record reflects that the Veteran had a respiratory condition prior to the date VA received her application to reopen the previously denied claim, the later dae is the date the claim to reopen was received. Therefore, an effective date earlier than February 29, 2012 is not warranted for the grant of service connection for reactive airway disease. 38 U.S.C. § 5110(a). The Board acknowledges the Veteran's contention that the 2005 claim was denied in a 2012 letter that she never received. The record, however, does not support this assertion. As noted, the claim was denied in a March 2007 rating decision. The Veteran received notification of the decision in April 2007 and filed a timely NOD. The record also reflects that the Veteran received the January 2010 SOC. In an October 2016 NOD, the Veteran expressly stated that the last correspondence she received related to the respiratory condition claim was on January 27, 2010. The record reflects that the January 27, 2010 correspondence provided notification of the SOC denying the claim. The record also does not reflect the existence of a 2012 letter addressing the claim for a respiratory condition. As the Veteran acknowledges receipt of the notice of denial, and there is no appeal in the record, the March 2007 rating decision became final, and there is no basis on which to conclude that the Veteran continuously prosecuted the 2005 claim. Accordingly, the claim for an earlier effective date is denied. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, Associate 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.