Citation Nr: 21007847 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-60 882 DATE: February 10, 2021 ORDER Entitlement to an effective date earlier than May 7, 2012 for the grant of a separate 10 percent rating for sciatic nerve radiculopathy of the left lower extremity is denied. REMANDED Entitlement to a disability rating for sciatic nerve radiculopathy of the left lower extremity in excess of 10 percent from May 7, 2012 to July 25, 2017, and in excess of 20 percent on and after July 26, 2017, is remanded. Entitlement to a disability rating for anterior crural (femoral) radiculopathy of the left lower extremity in excess of 10 percent from May 7, 2012 to July 25, 2017, and a compensable rating on and after July 26, 2017, is remanded. Entitlement to a disability rating in excess of 30 percent for depression is remanded. Entitlement to a total rating based on unemployability due to service-connected disabilities (TDIU) is remanded.  FINDING OF FACT 1. The Veteran’s claim for service connection for a low back disability was granted in a September 2002 rating decision, with a 20 percent rating assigned for myofascial pain syndrome with muscle spasm of the lumbar spine on and after May 22, 2002. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year, and it became final. 2. VA received a claim for an increased rating for myofascial pain syndrome with muscle spasm of the lumbar spine on May 7, 2012. 3. In a September 2012 rating decision, VA granted a separate 10 percent rating for sciatica/radiculopathy of the left lower extremity on and after August 17, 2012. 4. In a July 2017 rating decision, VA granted an effective date of May 7, 2012 for the separate 10 percent rating. 5. There is no indication of an attempt to claim an increased rating for myofascial pain syndrome with muscle spasm of the lumbar spine or service connection for radiculopathy of the left lower extremity between September 2002 and May 7, 2012 and it is not factually ascertainable that an increase in disability occurred within one year prior to May 7, 2012. CONCLUSION OF LAW 1. The criteria for entitlement to an effective date prior to May 7, 2012 for the grant of a separate 10 percent rating for sciatic nerve radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 5101, 5107, 5108, 5110, 7105 (2012); 38 C.F.R. §§ 3.104, 3.400, 19.52, 20.1103 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from July 2001 to May 2002. The Veteran testified before the undersigned Veterans Law Judge during a July 2020 hearing and a transcript is of record. These matters are on appeal from September 2012, August 2014, and November 2014 rating decisions. Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist with regard to the issue being decided below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Sciatic Nerve Radiculopathy of the Left Lower Extremity – Effective Date The Veteran asserts that he should be granted an effective date earlier than May 7, 2012, for a separate 10 percent rating for sciatic nerve radiculopathy of the left lower extremity. Unless specifically provided otherwise by statute, the effective date of an award for compensation benefits based on (1) an original claim, (2) a claim reopened after final adjudication, or (3) a claim for increase, is the date VA received the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Lalonde v. West, 12 Vet. App. 377, 382 (1999). With regard to a claim for increase, the effective date can be up to one year earlier than the date of the claim if it is factually ascertainable, based on all evidence of record, that an increase in disability occurred within one year of the date of claim. 38 C.F.R. § 5110(b)(3); 38 C.F.R. § 3.400; Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). If the increase occurred more than one year prior, the increase is effective the date of the claim. Gaston, 605 F. 3d at 980; see also Harper v. Brown, 10 Vet. App. 125 (1997). The Veteran first submitted a claim for entitlement to service connection for a low back disability in April 2002. VA granted service connection for myofascial pain syndrome with muscle spasm of the lumbar spine in a September 2002 rating decision and assigned a 20 percent rating on and after May 22, 2002, which is the day after the Veteran’s separation from active duty service. The Veteran did not submit an NOD or new and material evidence within the one year period following the decision. The decision became final and not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103. The Board has reviewed the claims file for any document, submitted after the September 2002 rating decision but before the Veteran’s May 7, 2012, claim for an increased rating, that could be considered a claim for an increased rating for a low back disability or for service connection for left lower extremity radiculopathy. Lalonde, 12 Vet. App. at 381. Effective March 24, 2015, when a claimant submits a communication indicating desire to file a claim for benefits, but the communication does not meet the standards of a complete claim for benefits, the communication will be considered a request for an application form for benefits under 38 C.F.R. § 3.350 (a). 38 C.F.R. § 3.155 (a) (2020). When such a communication is received, the Agency of Original Jurisdiction (AOJ) shall notify the claimant of the information needed to complete the application form or form prescribed by the Secretary. Id. A complete claim on an application form designed for the purpose is required for all types of claims. 38 C.F.R. § 3.155 (d) (2020). The Board has found no communication from the Veteran to VA that could be construed as a request for an increased rating for a low back disability or for service connection for left lower extremity radiculopathy prior to the claim submitted on May 7, 2012. Moreover, neither the Veteran nor his attorney assert that the Veteran filed a formal claim, an informal claim prior to March 24, 2015, or an intent to file during that time. In order for the Veteran to be awarded an effective date based on any of the prior rating decisions, he has to show clear and unmistakable error (CUE) in the prior decision as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Any claim of CUE must be pled with specificity. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. Persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. Neither the Veteran nor his attorney have raised CUE. An effective date earlier than May 7, 2012 for a separate 10 percent rating for sciatic nerve radiculopathy of the left lower extremity is therefore only warranted if it is factually ascertainable that an increase in disability occurred within one year prior to May 7, 2012. Neither the Veteran nor his attorney have contended that such an increase is factually ascertainable and the Board has found nothing by which it could factually ascertain such an increase. For those reasons, the Board concludes that the Veteran is not entitled to an effective date earlier than May 7, 2012, for a separate 10 percent rating for sciatic nerve radiculopathy of the left lower extremity, which is the date of the increased rating claim that led to the grant of a separate compensable rating. REASONS FOR REMAND 1. Entitlement to a disability rating for sciatic nerve radiculopathy of the left lower extremity in excess of 10 percent from May 7, 2012 to July 25, 2017, and in excess of 20 percent on and after July 26, 2017, is remanded. 2. Entitlement to a disability rating for anterior crural (femoral) radiculopathy of the left lower extremity in excess of 10 percent from May 7, 2012 to July 25, 2017, and a compensable rating on and after July 26, 2017, is remanded. The Veteran was last afforded a VA examination for his service-connected left lower extremity radiculopathy in July 2017, three and a half years ago. At that time, the clinician noted that the Veteran’s symptoms included moderate intermittent pain and no constant pain. During the July 2020 hearing, the Veteran testified that his radiculopathy symptoms had gotten “worse and worse and worse” since 2017 and now included constant pain at a level of seven and a half or eight out of a possible ten. The record thus raises the possibility that the Veteran’s service-connected left lower extremity radiculopathy could now be more severe than the July 2017 examination report reflects. “Where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted.” Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A remand for a new examination is thus warranted. In addition, VA treatment records prior to August 29, 2017 and from January 1, 2019 to July 30, 2020 have been associated with the claims file. During the July 2020 hearing, the Veteran testified that he believed he had had a nerve conduction study within the last three years. The most recent electromyogram (EMG) mentioned in the VA treatment records that have been associated with the claims file is from April 2012. A remand is warranted to attempt to obtain records of any additional EMG or nerve conduction study during the period on appeal. See 38 U.S.C. § 5103A(c)(1)(B) (2012); 38 C.F.R. § 3.159(c)(3) (2020). 3. Entitlement to a disability rating in excess of 30 percent for depression is remanded. The Veteran was last afforded a VA examination for his service-connected depression in July 2017, three and a half years ago. At that time, the clinician listed the Veteran’s only symptoms for rating purposes as depressed mood and chronic sleep impairment. The Veteran has submitted an April 2018 examination report by a private psychologist, who noted that his symptoms included persistent depression and a persistent “state of panic.” The Veteran has also submitted VA treatment records noting two hospitalizations in August 2020, one for anxiety and depression and one for depression and suicidal thoughts. The record thus raises the possibility that the Veteran’s service-connected depression could now be more severe than the July 2017 examination report reflects. “Where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted.” Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A remand for a new examination is thus warranted. 4. Entitlement to a TDIU is remanded. Because the Veteran contends that he is unemployable in part due to his left lower extremity radiculopathy and his depression, his claim for a TDIU is inextricably intertwined with this remand and the Board cannot fairly proceed in adjudicating the TDIU claim until the left lower extremity radiculopathy and depression claims have been resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009).  The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the Veteran, specifically including but not limited to any records dated between August 29, 2017 and January 1, 2019, any records of an EMG or nerve conduction study during the period on appeal other than the April 2012 EMG, and any records of the Veteran’s hospitalizations for psychiatric symptoms in August 2020. The Agency of Original Jurisdiction (AOJ) shall document, in writing, all efforts to obtain these records, to include any formal finding that the records are unavailable. 2. Arrange for the Veteran to have a physical or telehealth examination by an appropriate clinician for the purpose of determining the current severity of his left lower extremity radiculopathy. The electronic claims file must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected left lower extremity radiculopathy. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The Veteran’s October 2017 statement regarding the severity of his symptoms. b. The Veteran’s testimony during a July 2020 hearing regarding the severity of his symptoms. 3. Arrange for the Veteran to have a physical or telehealth examination by an appropriate clinician for the purpose of determining the current severity of his depression. The electronic claims file must be made available to the clinician for review. The clinician is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of any symptoms of his service-connected depression. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The Veteran’s October 2017 statement regarding the severity of his symptoms. b. The April 2018 private examination report. c. The Veteran’s testimony during a July 2020 hearing regarding the severity of his symptoms. d. VA treatment records of the Veteran’s August 2020 hospitalizations for psychiatric symptoms. 4. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998) (Continued on the next page)   5. Then, readjudicate the claims, including the TDIU claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.