Citation Nr: 21076978 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 08-01 822 DATE: December 28, 2021 ORDER Entitlement to an earlier effective date of May 31, 2006 for the grant of a 20 percent rating under Diagnostic Code 8520 for right lower extremity radiculopathy (sciatic nerve) is granted. Entitlement to an earlier effective date of May 31, 2006 for the grant of a 20 percent rating under Diagnostic Code 8520 for left lower extremity radiculopathy (sciatic nerve) is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, his right lower extremity radiculopathy symptoms met the criteria for a 20 percent rating, effective May 31, 2006. 2. Resolving reasonable doubt in favor of the Veteran, his left lower extremity radiculopathy symptoms met the criteria for a 20 percent rating, effective May 31, 2006. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date of May 31, 2006 for the grant of a 20 percent rating for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.102, 3.400, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to an earlier effective date of May 31, 2006 for the grant of a 20 percent rating for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.102, 3.400, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1995 to June 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2006 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims in July 2011, September 2016, September 2017, and August 2018 for further development. In an August 2020 decision, the Board, in pertinent part, granted entitlement to an effective date of August 24, 2016 for the award of a separate 20 percent rating for radiculopathy, left lower extremity, and entitlement to an effective date of August 24, 2016 for the award of a separate 20 percent rating for radiculopathy, right lower extremity, and denied entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity and entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity, which was appealed to the CAVC. In a May 2021 Joint Motion for Remand (JMR), the parties agreed to continue the disagreement with only the effective date assigned the radiculopathy of the lower extremities. Pursuant to the JMR, the CAVC issued a June 2021 Order that vacated the August 2020 decision in part and remanded the underlying claims to the Board for readjudication. Earlier Effective Date The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(o)(2), the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. Id.; see 38 U.S.C. § 5110(a), (b)(2). The Court has held that 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise, the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper, 10 Vet. App. at 126. Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to an effective date earlier than August 24, 2016 for the grant of 20 percent ratings each for right and left lower extremity radiculopathy. The Veteran asserts that an effective date earlier than August 24, 2016 is warranted for the grant of an increased rating for bilateral lower extremity radiculopathy. In this case, the Veteran first filed his claim for service connection on April 16, 1999 for chronic low back pain. The RO granted service connection for a back condition in June 1999. The Veteran filed a claim for an increased rating in March 2004. In a July 2004 rating decision, the RO continued the rating of 10 percent disabling for the Veteran's back condition. The Veteran did not file a timely notice of disagreement (NOD); therefore, the decision became final. The Veteran's claim for an increased evaluation for the lumbar spine was dated in May 2006 and received by the RO on May 31, 2006. In a November 2007 Statement of the Case (SOC), the RO continued the Veteran's back condition at 10 percent disabling. The Veteran filed a substantive appeal. In a June 2015 Board decision, the Board granted an increased rating for the Veteran's back condition at 20 percent disabling, effective May 31, 2006. In a March 2017 rating decision, the RO granted the Veteran entitlement to service connection for bilateral lower extremity radiculopathy at 10 percent disabling, effective October 28, 2016. The Veteran filed a NOD in August 2017 and sought increased ratings and earlier effective dates for bilateral lower extremity radiculopathy. In a January 2018 SOC, the RO increased the Veteran's bilateral lower extremity radiculopathy at 20 percent disabling each and continued the effective date. The Veteran filed a substantive appeal. In a Supplemental Statement of the Case (SSOC), the RO continued the Veteran's bilateral lower extremity radiculopathy at 20 percent disabling and the effective date. In the August 2020 Board decision, the Board granted an earlier effective date of August 24, 2016 and denied an initial rating greater than 20 percent for the Veteran's bilateral lower extremity radiculopathy. The Veteran's right and left lower extremity radiculopathy is each rated as 20 percent disabling, effective August 24, 2016, under Diagnostic Code 8520. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. Regarding radiculopathy of the lower extremities, the Board granted an earlier effective date based on a statement received at the VA on August 24, 2016, where the Veteran reported that he often started to lose feeling in his legs along with radiating pain. A June 2006 VA examination found no evidence of radiculopathy on objective testing. There appeared to be no further mention of radicular pain until July 2011 VA treatment records where the Veteran reported that he occasionally had radicular pain and numbness in the feet. However, no diagnosis of radiculopathy was made. The Veteran was subsequently afforded a VA examination in July 2012. It was noted that the Veteran did not have any radicular pain or signs or symptoms due to radiculopathy. Upon objective testing, the examiner found no evidence of radiculopathy. The examiner was aware of the Veteran's reports of occasionally radiating pain and tingling in his toes, but still found no objective evidence of radiculopathy. It appears that the next mention of radicular symptoms is the Veteran's August 2016 statement. Thereafter, an April 2018 retrospective VA opinion indicated that 2004 MRI findings would explain the Veteran's intermittent radicular symptoms since that time. The examiner also noted that the Veteran reported that his symptoms began in 2004 and have persisted intermittently. Private treatment records in March 2004 showed reports of lower extremity neuropathic pain. The question for the Board to determine then is the date entitlement arose. In this regard, in DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011), the Court clarified that "entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." See Brokowski v. Shinseki, 23 Vet. App. 79, 90 (2009) ("[A] medical diagnosis is not necessary to initiate a claim."); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a medical diagnosis is not required to substantiate a claim in certain circumstances). The Court also explained that there are instances where the "facts found" or alternatively, "date entitlement arose" may be later than the date of claim. DeLisio, 25 Vet. App. at 51-52. These included (1) the date the disability first manifested and (2) the date entitlement to benefits was authorized by law and regulation. Id. Instead of assigning an effective date mechanically on the date a Veteran was diagnosed, "all of the facts should be examined to determine the date that [the Veteran's disease] first manifested." See id. at 58. The Board must determine when a service-connected disability manifested itself under all the "facts found," including the medical opinions in question, and assign an effective date based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000). The Board observes further, that "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). Here, a June 1997 service treatment record (STR) shows complaints of intermittent pain without radiation (8/10), but the Veteran's entire leg is tingling. An April 1999 STR indicated the Veteran's low back pain radiates to the left leg; the pain same as before on June 16, 1997. There was slight pain at L3-5 on straight leg raises, bending, and twisting. The March 2004 MRI findings indicate a diagnosis of lower extremity neuropathic pain, with a date of diagnosis of March 5, 2004. At the June 2006 VA examination, the Veteran complained of lower back pain for about seven years with stiffness and weakness. The pain was described as sharp, burning in the lower back and constant. It was noted that the pain radiated down the legs and was aching, sharp, and cramping (9/10). Therefore, the Board resolves reasonable doubt in favor of the Veteran, at the time of the Veteran's claim in May 2006, the evidence of record demonstrates the Veteran was entitled to compensation for bilateral lower extremity radiculopathy at the 20 percent level. The earliest date that entitlement arose was March 5, 2004. The appropriate effective date is the date that the claim is received since the increase in disability precedes the claim by more than a year. Therefore, entitlement to an earlier effective date of May 31, 2006 is warranted for bilateral lower extremity radiculopathy. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Edwin B. Esmenda, 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.