Citation Nr: 21006764 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 190730-41090 DATE: February 5, 2021 ORDER An effective date of September 3, 2004, but no earlier, for service connection for left lower extremity radiculopathy is granted. An effective date of January 26, 2012, but no earlier, for service connection for right lower extremity radiculopathy is granted. FINDINGS OF FACT 1. During the pendency of the claim for service connection for a low back disability, entitlement to service connection for left lower extremity radiculopathy as secondary to the now service-connected low back disability arose from a September 3, 2004 VA outpatient examination. No formal claim for service connection for left lower extremity radiculopathy was ever filed. 2. During the pendency of the claim for service connection for a low back disability, entitlement to service connection for right lower extremity radiculopathy as secondary to the now service-connected low back disability arose from a January 26, 2012 VA examination. No formal claim for service connection for right lower extremity radiculopathy was ever filed. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 3, 2004, but no earlier, for service connection for left lower extremity radiculopathy have been met. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). 2. The criteria for an effective date of January 26, 2012, but no earlier, for service connection for right lower extremity radiculopathy have been met. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from December 1965 to March 1966. The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA), creates a new framework of review for veterans disagreeing with VA’s decision on their claim. This decision has been written consistent with the new AMA framework. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2019 rating decision from the Regional Office (RO), which denied an effective date earlier than July 22, 2016 for the grant of service connection for left and right lower extremity radiculopathy. In July 2019, the Veteran submitted a timely Notice of Disagreement (NOD) with the July 2019 rating decision and selected direct review of the issues on appeal by a Veterans Law Judge. The matter was previously before the Board in November 2019. In the November 2019 Board Decision, the Board denied an earlier effective date than July 22, 2016 for left and right lower extremity radiculopathy. The Veteran appealed the matter to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Remand (JMR), the parties agreed that a remand was warranted for the Board consider the January 2012 VA examination that showed diagnosis of bilateral lower extremity radiculopathy. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. With respect to the appeal for an earlier effective date, resolution of this issue turns on the law as applied to the undisputed facts regarding the date of receipt of claim and date entitlement arose. As this issue turns on a matter of law, further assistance, such as the further procurement of records, would not assist the Veteran with the appealed issue. As such, no further notice or development under the VCAA is warranted with respect to this issue. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). 1. Effective Date for Service Connection for LLE Radiculopathy 2. Effective Date for Service Connection for RLE Radiculopathy The effective date of a rating and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a 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 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In Roper v. Nicholson, 20 Vet. App. 173 (2006), the Court held that effective dates for both primary and secondary conditions are governed by 38 C.F.R. § 3.400, which provides that the effective date is the later of the date the condition arose or the date the veteran applied for benefits. The Veteran contends that an effective date as early as May 14, 2001, but no later than January 26, 2012 is warranted for the bilateral lower extremity radiculopathy. The Veteran asserts that the bilateral lower extremity radiculopathy was granted as secondary to the service-connected low back disability and was encompassed in the claim for service connection for the low back disability received in May 2001. The Veteran contends that he reported left lower extremity radicular symptoms since 2000 during the January 2012 VA examination, and he was diagnosed with radiculopathy in both lower extremities during the January 2012 examination; therefore, he is entitled to an effective date no later than January 2012 for the grant of service connection for lower extremity radiculopathy. See December 2020 representative brief; July 2017 NOD. In this case, no claim, formal or informal, was filed for service connection for bilateral lower extremity radiculopathy. A review of the record shows that VA received a claim for service connection for a low back disability on May 14, 2001 with no mention of or secondary claim for any associated radicular symptoms. The service treatment records are silent for complaints, symptoms, or diagnoses or left or right lower extremity radiculopathy. VA treatment notes dated from 2001 through 2003 are also silent for signs, symptoms, or diagnosis of lumbar radiculopathy, as the Veteran endorsed chronic low back pain, but specifically denied any associated pain, numbness or weakness in the lower extremities during clinical encounters. It was also noted that the Veteran did not present with a neurological factor, as the findings included grossly normal strength and sensation during this period. See April 2001, April 2002, January 2003 VA treatment records. Left Lower Extremity Low back pain with radiation into the left leg was first noted during a September 3, 2004 VA clinical encounter. At that time the Veteran reported an onset of left leg pain since May 2004. Upon examination, there was a positive straight leg raise for pain in the lateral left leg at about 50 degrees. The conclusion was chronic low back pain with radiating pain in the left leg. Physical therapy was rendered over the next few months for chronic back pain with intermittent radicular symptoms of pain, numbness, and tingling in the left lower extremity. See September 2004, October 2004, November 2004, April 2006 VA treatment records. Although the Veteran has reported on separate occasions that radicular symptoms in the left lower extremity have been present since 2000 and May 2004 (per the September 2004 VA treatment record and January 2012 VA examination report), no clinical signs or diagnosis of left lower extremity radiculopathy is evidenced prior to the September 3, 2004 VA clinical encounter, when the Veteran was first diagnosed with chronic low back pain with radicular pain in the left leg. The Veteran was later diagnosed with left lower extremity radiculopathy during the January 2012 VA examination based on similar signs and symptoms noted in September 2004. Based on these facts, September 3, 2004 is the earliest date that entitlement for left lower extremity radiculopathy arose. As September 3, 2004 was the first evidence of left leg radiculopathy associated with the service-connected low back disability, this is the first date shown that entitlement to a separate rating for the left leg lower extremity radiculopathy arose. 38 C.F.R. § 3.400(o)(2). It is the earliest date that a VA examination showed left leg lower extremity radiculopathy to constitute an informal claim for increase (separate rating). See 38 C.F.R. § 3.157 (2004). For this reason, the undisputed evidence shows that the date entitlement arose for a separate rating and the date of informal claim are the same, September 3, 2004; therefore, the earliest effective date available for service connection for left lower extremity radiculopathy is September 3, 2004. 38 C.F.R. § 3.157 (2004); 38 C.F.R. § 3.400(o)(2). Right Lower Extremity Evidence of right lower extremity radiculopathy did not arise until the January 26, 2012 VA examination. At that time the Veteran endorsed mild intermittent pain and paresthesias/dysesthesias, as well as moderate numbness in the right lower extremity. At the January 2012 VA examination, the Veteran also reported a history of radicular symptoms in the left leg and foot since 2000, with current symptoms of moderate intermittent pain, paresthesias/dysesthesias, and numbness in left lower extremity; however, prior examinations and VA treatment records do not record such symptoms to constitute and informal claim for increase (separate) rating for right lower extremity radiculopathy prior to January 2012. The VA examiner noted that a January 2012 computed tomography (CT) of the lumbar spine showed multilevel degenerative disc and joint disease and herniated disc with nerve root impingement, which was a progression from previous imaging of the lumbar spine. The examiner diagnosed radiculopathy in both lower extremities, moderate in severity. See January 2012 VA examination report. Additionally, as there are no clinical signs or diagnosis of right lower extremity radiculopathy evidenced prior to the January 2012 VA examination, when the condition was first diagnosed, January 2012 is the earliest date that entitlement to benefits for right lower extremity radiculopathy arose. Therefore, the Board has resolved reasonable doubt in the Veteran’s favor in finding that an effective date of January 26, 2012, but no earlier, for the award of service connection for right lower extremity radiculopathy is warranted. As January 26, 2012 was the first evidence of right leg radiculopathy associated with the service-connected low back disability, this is the first date shown that entitlement to a separate rating for the right leg lower extremity radiculopathy arose. 38 C.F.R. § 3.400(o)(2). It is the earliest date that a VA examination showed right leg lower extremity radiculopathy to constitute an informal claim for increase (separate rating for the radiculopathy). See 38 C.F.R. § 3.157 (2004). For this reason, the undisputed evidence shows that the date entitlement arose for a separate rating and the date of informal claim are the same, January 26, 2012; therefore, the earliest effective date available for service connection for right lower extremity radiculopathy is January 26, 2012. 38 C.F.R. § 3.157 (2004); 38 C.F.R. § 3.400(o)(2). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.