Citation Nr: A21020286 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 190715-23933 DATE: December 20, 2021 ORDER Entitlement to an earlier effective date of July 7, 2017, for the grant of service connection for tinnitus is dismissed. Entitlement to an earlier effective date of July 7, 2017, for the grant of service connection for left ear hearing loss is dismissed. Entitlement to an effective date of July 7, 2017, but no earlier, for the 40 percent rating for degenerative arthritis and disc disease of the lumbosacral spine, (previously rated as mechanical low back pain), is granted. Entitlement to an effective date of October 23, 2017, but no earlier, for the award of service connection for right lower extremity radiculopathy is granted. Entitlement to an effective date of October 23, 2017, but no earlier, for the award of service connection for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. On July 7, 2017, VA received a VA 21-0966 Intent to File from the Veteran, and exactly one year later (on July 7, 2018, VA received a formal claim (VA Form 21-526EZ) for VA disability compensation, including for a higher rating for his service-connected lumbar spine disability. 2. In a January 2019 rating decision, the RO granted service connection for left ear hearing loss and tinnitus effective July 7, 2018; and in a May 2019 rating decision the RO increased the rating for the Veteran's service-connected lumbar spine disability from 10 percent to 40 percent and granted service connection for left and right lower extremity radiculopathy, also effective July 7, 2018. 3. In a modernized review system (AMA) Appeal form (VA Form 10182) received by VA in July 2019, the Veteran requested an earlier effective date of July 7, 2017, for the January 2019 grant of service connection for left ear hearing loss and tinnitus; and an earlier effective date of July 7, 2017, for the May 2019 increase in rating to 40 percent for the service-connected lumbar spine disability and the grant of service connection for left and right lower extremity radiculopathy. 4. The issues decided in the January 2019 rating decision are ineligible for review in the modernized system. 5. At the time of the July 7, 2017, Intent to File there was probative evidence of progressing pain representing a factually ascertainable increase in the severity of the service-connected low back disability. 6. Radiculopathy was not diagnosed until October 23, 2017. CONCLUSIONS OF LAW 1. The criteria for dismissal of the appeal for an earlier effective date of July 7, 2017, for the grant of service connection for left ear hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.21(a)(1), 20.104(c), 20.202(d). 2. The criteria for dismissal of the appeal for an earlier effective date of July 7, 2017, for the grant of service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.21(a)(1), 20.104(c), 20.202(d). 3. The criteria for an effective date of July 7, 2017, but no earlier, for the 40 percent rating for degenerative arthritis and disc disease of the lumbosacral spine have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 4. The criteria for an effective date of October 23, 2017, but no earlier, for the award of service connection for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 5. The criteria for an effective date of October 23, 2017, but no earlier, for the award of service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1989 through July 1994. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in January and May 2019 by a VA Regional Office (RO). In March 2021, the Veteran testified at a virtual Board Hearing. A transcript of the proceeding has been associated with the claims file. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). DISMISSAL OF CLAIMS 1-2. Entitlement to an earlier effective date of July 7, 2017, for the grant of service connection for left ear hearing loss and tinnitus is dismissed. In a rating decision dated January 7, 2019, the RO granted service connection for left ear hearing loss and service connection for tinnitus; and in a letter dated January 14, 2019, the RO notified the Veteran of the January 7, 2019, rating decision and advised him he was required to file a VA Form 21-0958 Notice of Disagreement (NOD) if he wished to appeal the January 2019 rating decision. The January 14, 2019, correspondence included a VA Form 21-0958 NOD for the Veteran to complete. For every case in which the agency of original jurisdiction (AOJ) provides, in connection with its decision, a form for the purpose of initiating an appeal, an NOD consists of a completed and timely submitted copy of that form. VA will not accept as an NOD an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result that is submitted in any other format, including on a different VA form. 38 C.F.R. § 19.21(a)(1) [emphasis added]. The Board may dismiss any case over which it determines that an appeal is ineligible for review. See 38 C.F.R. § 20.104(c). In July 2019, the Veteran submitted a VA Form 10182-Board Appeal to the January 2019 rating decision, contrary to the RO's explicit January 2019 instructions, and in direct contravention of 38 C.F.R. § 19.21(a)(1). When the Board, on its own initiative, raises a question as to a procedural defect, all parties to the proceeding and their representative(s), if any, will be given notice of the defect(s) and granted a period of 60 days following the date on which such notice is mailed to present written argument and additional evidence relevant to jurisdiction and to request a hearing to present oral argument on the jurisdictional question(s). The date of mailing of the notice will be presumed to be the same as the date stamped on the letter of notification. See 38 C.F.R. § 20.104(c). In a letter dated August 4, 2021, the Board advised the Veteran that his VA Form 10182-Board Appeal was defective as to the issues of an earlier effective date of July 7, 2017, for the grant of service connection for left ear hearing loss and the grant of service connection for tinnitus because the matters were ineligible for review in the modernized system. The Board pointed out that VA Form 10182-Board Appeal was for purposes of review of decisions issued under the modernized review (AMA) system, and explained that because the January 2019 rating decision was issued prior to the February 19, 2019, implementation date of the AMA and/or was not adjudicated as part of the Rapid Appeals Modernization Program (RAMP), the January 2019 decision was not eligible for review in the modernized system. The August 2021 letter also informed the Veteran that the Board had the authority to dismiss the appeal of the issues of an earlier effective date of July 7, 2017, for the grant of service connection for left ear hearing loss and the grant of service connection for tinnitus because of the identified defect. The letter then advised the Veteran that he should submit, in writing, additional evidence or argument regarding the matter and why the Board should nonetheless decide the case within 60 days from the date of its letter; or request, in writing, a Board Hearing to present oral argument on the matter, again within 60 days from the date of its letter. See Board's August 4, 2021, letter to the Veteran. More than 60 days has lapsed since the Board's August 4, 2021, notification to the Veteran regarding the procedural defect and there has been no response. Indeed, the Board has generously afforded more than 90 days for such, but neither the Veteran nor his representative has responded. VA has created procedural "claims processing" regulations for the filing of an NOD to a Legacy system decision (see 38 C.F.R. §§ 19.21(a)(1)), and the Board has the responsibility to insist on adherence to those rules. In circumstances such as this, as noted above, VA regulations provide that it "will not" accept as an NOD an expression of dissatisfaction or disagreement with an adjudicative determination by the AOJ that is improperly submitted, including on a different VA form. See 38 C.F.R. § 19.21(a)(1). Due to the procedural defect outlined above, the issues of an earlier effective date for the grant of service connection for left ear hearing loss and the grant of service connection for tinnitus are dismissed. 38 C.F.R. § 20.104(c); see also Hall v. McDonough, Vet. App. Docket No. 19-8717 (October 18, 2021) (the Board may consider dismissing an AMA appeal for a procedural defect). EARLIER EFFECTIVE DATE 3. Entitlement to an effective date of July 7, 2017, but no earlier, for the 40 percent rating for degenerative arthritis and disc disease of the lumbosacral spine (previously rated as mechanical low back pain) is granted. The Veteran is requesting an earlier effective date of July 7, 2017, for the 40 percent increase in rating for his service-connected lumbar spine disability. In claims such as this, VA regulations provide that the effective date shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). The Court of Appeals for Veterans Claims (Court) has indicated that it is axiomatic that the fact that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 38 U.S.C. § 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable increase for this purpose is one to the next disability level" provided by law for the particular disability). Section 3.400(o)(2) is intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty and is not intended to cover situations where a disability worsened gradually and imperceptibly over an extended period of time and there is no evidence of entitlement to increased evaluation prior to the date of claim. See VAOPGCPREC 12-98 (Sept. 23, 1998). In this regard, a "report of examination or hospitalization" should "indicate that [a] Veteran's service-connected disability [has] worsened since the time it was last evaluated." Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). A letter may qualify if it, for instance, was "generated in connection with any particular VA medical examination" rather than, for example, a "claim for Social Security disability benefits that was pending at the time it was written." Massie v. Shinseki, 25 Vet. App. at 133. Other considerations include whether the letter relates "the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation," rather than "present[ing] a very short summation of [the Veteran's general condition, as [the physician] had observed it over" time. Id. The Veteran submitted an Intent to File a claim on July 7, 2017. A Fully Developed Claim was received exactly one year later, specifying that he was seeking an increased rating for his lumbar spine disability. As for the date entitlement arose, on review of the record the Board finds that there is probative lay evidence of worsening pain within the one-year period prior to the Veteran's July 7, 2017, Intent to File. See Veteran's November 2, 2016, letter to the President of the United States in which he stated that he had been trying to upgrade his disability and was getting the run around, and that "the pain that I deal with day in and out is coming to a [sic] intolerable pain. Some how [sic] this must come to an end." There is, however, no medical evidence in the one-year period prior to the July 7, 2017, date of claim demonstrating a factually ascertainable increase in severity of the lumbar spine disability. Instead, the earliest medical evidence approximate to the claim for increased rating is dated July 28, 2017. See VA New Patient records dated July 28, 2017, which document the Veteran as "with a history of chronic low back pain presenting to establish care and with acute on chronic back pain with radicular symptoms concerning for disc herniation." On the other hand, and notwithstanding the fact that the earliest relevant medical evidence derives from a July 28, 2017, VAMC visit, it is reasonable to assume that the visit was scheduled before July 28, 2017, since this was a primary care and not an Emergency Department visit. The Board finds that there is an approximate balance of evidence for and against a finding that a factually ascertainable increase in disability had occurred as of the July 7, 2017, date of claim for an increased rating. In matters such as this where, after careful consideration of all procurable and assembled data, a reasonable doubt arises, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. Such is the situation in this case. The Board accordingly finds that, in addition to a date of claim of July 7, 2017, there was entitlement to the rating on that date. 38 C.F.R. § 3.400(o)(2). The criteria for an earlier effective date of July 7, 2017, for the 40 percent rating for the service-connected lumbar spine disability are thus met and the appeal is granted. This constitutes a full grant of the benefit sought on appeal, as the Veteran specified that he was requesting an effective date of July 7, 2017, for the newly awarded 40 percent rating for his lumbar spine disability. See Veteran's July 15, 2019, correspondence, and Veteran's March 2021 hearing testimony. An even earlier effective date is not at issue and will not be discussed. 4-5. Entitlement to an effective date of October 23, 2017, but no earlier, for the award of service connection for right and left lower extremity radiculopathy is granted. The Veteran is also requesting an earlier effective date of July 7, 2017, for the grant of service connection for his left and right lower extremity radiculopathy. VA regulations expressly provide that the effective date for an award of service connection can be no earlier than the date of receipt of claim or the date entitlement arose, whichever is later. This means that the effective date of service connection will never be earlier than the date of claim (unless the claim is received within the year after the Veteran's separation from service). Secondary service connection is granted for a "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). The effective date of awards of claims granted on a secondary basis can be no earlier than the date of the claim for compensation on a secondary basis. See Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007) (finding that the effective date for a grant of service connection for diabetes and hypertension as secondary to leukemia was the date of the claim for secondary service connection, not the date of the claim of service connection for leukemia), aff'd sub nom. Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008); Ross v. Peake, 21 Vet. App. 528, 532-33 (2008) (holding that the effective date for a grant of secondary service connection for depression with anxiety was the date of the secondary service connection claim, not the date of the claim for service connection for the primary heart condition). As explained above, the Intent to File was received by VA on July 7, 2017. A Fully Developed Claim seeking an increased rating for the service-connected lumbar spine disability (and any associated residuals) was received exactly one year later. There is no prior unadjudicated claim for compensation either for an increased lumbar spine rating or for associated radiculopathy received before July 7, 2017. The question thus remaining is the date entitlement arose. Prior to July 2017, there were complaints regarding the lower extremities, but no diagnosis of radiculopathy. Significantly, in a decision issued in December 2001, the Board denied a disability rating higher than 10 percent for the service-connected lumbar spine disability. The Board recapped all of the medical and lay evidence dating from 1994 to 1999, including the left and right lower extremity symptoms. The Board laid out the results of VA examinations done in February 1995, October 1997, and March 1999. The Board also discussed all of the medical evidence, including VA medical records dating from September 1995 to August 1997 that were received by the RO in July 1998. The Board noted that the Veteran endorsed pain worsened by activities such as pushing, bending, and lifting, as well as by prolonged sitting, standing, or walking, and that the pain radiated into both legs down to calf level. The Board further noted that the Veteran described episodes of tingling in both legs and some numbness of the feet. The Board also discussed the results of x-rays taken in June 1996, EMG testing in October 1995, and a December 1996 CT scan. The Board noted that the Veteran's subjective complaints had not been borne out by objective findings, observing that an EMG, x-ray, and CT scan tests were essentially negative, and that March 1997 consultation sheets indicated that the Veteran's complaints appeared to be exaggerated. The Board especially noted the October 1997 VA contract examiner's assertion that there was absolutely no sign of radiculitis or radiculopathy, with nerve root tension signs being absent and an absolutely normal neurological evaluation. The Board's December 2001 denial of an increased rating for the service-connected low back "mechanical" pain disability encompassed and addressed the issue of radiculopathy, considered all of the medical and lay evidence of record at the time, and particularly noted that there was no lower extremity radiculitis or radiculopathy; and it is final. After a 7 year hiatus, the Veteran returned to the VA to get "back into the system." See VA New Patient records dated in June 2008. There is no mention in those records of the lower extremities and no diagnosis of radiculopathy. There is no subsequent lay or medical evidence with specific reference to lower extremity complaints and/or symptoms in the claims file until 2017. As stated before, the Veteran presented to VA to establish care on July 28, 2017. See VA New Patient records dated July 28, 2017, which describe the Veteran as "presenting to establish care and with acute on chronic back pain with radicular symptoms concerning for disc herniation. Low back pain with radicular symptoms." Notably, however, those records do not contain a diagnosis of radiculopathy. The Veteran then underwent another VA Back (Thoracolumbar Spine) Conditions examination on August 22, 2018, at which time he was diagnosed with "mild degenerative disc disease L5/S1 with radiculopathy. The examiner expressly provided a date of diagnosis for the radiculopathy of "10/23/2017." There is no diagnosis of radiculopathy before October 23, 2017; and the Board is bound by this evidence. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). The Board consequently finds that October 23, 2017, is the date entitlement arose for service connection for left and right lower extremity radiculopathy. In so finding, the Board is mindful of the July 28, 2017, evidence of pain and has considered the Court's holding in Saunders v. Wilkie that pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability if it reaches the level of a functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, there is no indication in the July 28, 2017, medical evidence that the Veteran's left and/or right lower extremity pain, alone, reached the level of a functional impairment of earning capacity, so an effective date of July 28, 2017, based on lower extremity pain, alone, is not appropriate. Additionally, and while the Veteran did in fact complain of "intolerable" pain in his November 2016 letter to the President, he significantly did not mention his left or right lower extremity in that communication. In any event, the November 2016 evidence is prior to the July 7, 2017, date of claim, so an effective date of November 2016 is not appropriate. The Board accordingly finds that an effective date of October 23, 2017, but not before, for the grant of service connection for left and right lower extremity radiculopathy is warranted, as this is the later between the July 7, 2017, date of receipt of claim and the October 23, 2017, date that entitlement arose. To this extent the appeal is granted. An effective date prior to October 23, 2017, for service connection for radiculopathy is not possible because entitlement did not arise until October 23, 2017. RACHEL E. JENSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Childers, Phyllis 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.