Citation Nr: A21020095 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200526-87459 DATE: December 16, 2021 ORDER Entitlement to an effective date of April 3, 2018 for the award of service connection for intervertebral disc syndrome (IVDS) of the lumbar spine is granted. Entitlement to an effective date of April 3, 2018 for the award of service connection for radiculopathy of the right lower extremity femoral nerve is granted. Entitlement to an effective date of April 3, 2018 for the award of service connection for radiculopathy of the right lower extremity sciatic nerve is granted. FINDINGS OF FACT 1. The VA did not notify the Veteran that his April 3, 2018 claim for service connection for intervertebral disc syndrome (IVDS) of the lumbar spine was incomplete. 2. The Veteran learned the April 3, 2018 application was incomplete from his representative and submitted a complete application on September 5, 2019. 3. The September 5, 2019 complete application is considered filed on April 3, 2018. 4. The claims for service connection for radiculopathy of the right lower extremity femoral nerve and radiculopathy of the right lower extremity sciatic nerve were within the scope of the claim for service connection for IVDS of the lumbar spine as neurological complications of IVDS and as contemplated by the rating criteria. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of April 3, 2018 for the award of service connection for intervertebral disc syndrome (IVDS) of the lumbar spine are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400(b)(2). 2. The criteria for entitlement to an effective date of April 3, 2018 for the award of service connection for radiculopathy of the right lower extremity femoral nerve are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400(b)(2). 3. The criteria for entitlement to an effective date of April 3, 2018 for the award of service connection for radiculopathy of the right lower extremity sciatic nerve are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400(b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1984 to March 2003. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for IVDS of the lumbar spine, radiculopathy of the right lower extremity femoral nerve and right lower extremity sciatic nerve with an effective date of September 5, 2019. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. Earlier Effective Date Effective March 24, 2015, in order for benefits to be paid to any individual under the laws administered by VA, a specific claim in the form prescribed by VA must be filed. 38 C.F.R. § 3.151(a). A claimant may indicate a desire to file a claim by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file, VA will furnish the claimant with the appropriate form. Id. If VA receives a complete application form within a year, it will consider the complete claim filed as of the date of the intent to file. Id. Upon receipt of an incomplete application form, VA must notify the claimant of the information necessary to complete the application. 38 U.S.C. § 5102(b); 38 C.F.R. § 3.155(c). If a complete claim is then submitted within one year of the incomplete application form, VA will consider it filed as of the date VA received the incomplete application. 38 C.F.R. § 3.155(c). In the event that VA receives both an intent to file a claim and an incomplete application before the complete claim is filed, the complete claim will be considered filed as of the date of whichever was filed first provided it is perfected within the necessary timeframe, but in no event will the complete claim be considered filed more than one year prior to the date of receipt of the complete claim. Id.; § 3.155(d)(1)(ii). The general rule regarding the assignment of effective date for an award based on an original claim for VA benefits is that the effective date shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to the general rule applies if an application for benefits is received within one year from the date of a Veteran's separation from active service, and an award is made on the basis of that application. In that limited situation, the effective date of the award is made retroactive to the day following the date of separation from service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2). The claimant may, but need not, assert entitlement to ancillary benefits at the time the complete claim is filed. VA will also consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition in 38 CFR Part 4, VA Schedule for Rating Disabilities. 38 C.F.R. § 3.155(d)(2). 1. Entitlement to an effective date of April 3, 2018 for the award of service connection for intervertebral disc syndrome (IVDS) of the lumbar spine 2. Entitlement to an effective date of April 3, 2018 for the award of service connection for radiculopathy of the right lower extremity femoral nerve 3. Entitlement to an effective date of April 3, 2018 for the award of service connection for radiculopathy of the right lower extremity sciatic nerve The Veteran contends he is entitled to an effective date of April 3, 2018 for the award of service connection for IVDS of the lumbar spine, radiculopathy of the right lower extremity femoral nerve, and radiculopathy of the right lower extremity sciatic nerve because he was not notified by VA that his April 3, 2018 application was incomplete. See September 5, 2019, Statement in Support of Claim; May 26, 2020,VA Form 10182. For the reasons that follow, the Board finds that an effective date of April 3, 2018 is warranted. The Veteran's initial claim of entitlement to service connection for IVDS, claimed as a lower back condition, was received by VA on April 3, 2018. Unfortunately, the page which identifies the claimed disabilities was missing from the April 3, 2018 VA Form 21-526EZ. As the claim did not identify the benefit sought, it was an incomplete application that required VA to notify the claimant of the information necessary to complete the application form prescribed by the Secretary. 38 C.F.R. § 3.160(a); 3.155(c). The next document in the claims file is a December 2018 annual summary of benefits letter followed by the September 5, 2019 VA Form 21-526EZ and a Statement in Support of Claim identifying the missing page from the April 3, 2018 VA 21-526EZ and identifying VA's failure to notify the claimant of his incomplete application. This error was discovered by the Veteran's representative after receiving a call from the Veteran inquiring about the status of his claim and the completed application was immediately submitted. See May 26, 2020, VA Form 10182. VA never sent a notice letter as required under 38 C.F.R. § 3.155(c) informing him that his application form was incomplete. While the modernized VA appeals system requires particular forms to accomplish specific tasks, there are uniquely pro-claimant principles underlying the veterans' benefits system. See Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013); Evans v. Shinseki, 25 Vet. App. 7, 14 (2011) (stating that the VA system is "veteran-friendly" and "non-adversarial"); Kouvaris v. Shinseki, 22 Vet. App. 377, 381 (2009) (noting that the veterans' benefits system is a "veteran-friendly" system). As the United States Court of Appeals for the Federal Circuit put it, "[t]he VA disability compensation system is not meant to be a trap for the unwary." Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009). (Continued on the next page) On these facts, and resolving all doubt in the Veteran's favor, the Board finds the September 5, 2019 complete application is considered filed the date of the April 3, 2018 incomplete application. The Board further finds that radiculopathy of right lower extremity femoral nerve and radiculopathy of right lower extremity sciatic nerve were within the scope of the claim for service connection for IVDS of the lumbar spine as a neurological complication of the condition and as identified in the rating criteria for the condition. The record establishes that the Veteran's IVDS of the lumbar spine dates back to 2012 and neurological manifestations of radiculopathy of the right lower extremity date back to 2014. See October 23, 2019, VA Examination. Given the foregoing, an effective date of April 3, 2018 for the grant of service connection for IVDS of the lumbar spine, radiculopathy of right lower extremity femoral nerve, and radiculopathy of right lower extremity sciatic nerve is granted. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ball Jackson, 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.