Citation Nr: 21008444 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-31 553 DATE: February 17, 2021 ORDER Entitlement to an earlier effective date of December 1, 2007 for the grant of service connection for sciatic nerve entrapment of the left lower extremity is granted. FINDINGS OF FACT 1. In a September 2007 rating decision, the agency of original jurisdiction (AOJ) denied entitlement to an increased rating for the Veteran’s service-connected thoracolumbar degenerative joint disease. The Veteran did not appeal the denial, and new and material evidence was not received as to the issue within the one-year appeal period following the issuance of the September 2007 rating decision. 2. On December 1, 2008, the Veteran submitted an increased rating claim for his service-connected thoracolumbar degenerative joint disease. The record includes evidence to show that the sciatic nerve entrapment of the left lower extremity was present as a manifestation of the Veteran’s lumbar spine disability since at least December 1, 2007. CONCLUSION OF LAW The criteria for an earlier effective date of December 1, 2007, for the grant of service connection for sciatic nerve entrapment of the left lower extremity have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Army from September 1963 through June 1972 and from January 1976 through September 1989. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2014 Decision Review Officer (DRO) decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for sciatic nerve entrapment of the left lower extremity and assigned a 10 percent rating, effective May 6, 2013. The Veteran’s notice of disagreement (NOD) with both the initial rating and the effective date of the award was received in June 2015. However, a January 2016 statement of the case only addressed the initial increased rating claim for this disability; and the Veteran filed a VA Form 9, substantive appeal, that was received in March 2016. The Board then remanded this issue in an April 2018 decision. In a subsequent December 2018 supplemental statement of the case, the AOJ addressed both the initial increased rating claim as well as the issue of whether an earlier effective date was warranted for the grant of service connection for sciatic nerve entrapment of the left lower extremity. The Board later assumed jurisdiction over the earlier effective date claim in an August 2019 decision. Percy v. Shinseki, 23 Vet. App. 37 (2009); In the August 2019 decision, the Board denied the earlier effective date claim in addition to the Veteran’s initial increased rating claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Order, the Court vacated the part of the Board’s August 2019 decision which denied entitlement to an effective date earlier than May 6, 2013, for the grant of service connection for sciatic nerve entrapment of the left lower extremity associated with thoracolumbar degenerative joint disease and remanded the matter pursuant to a July 2020 Joint Motion for Partial Remand (JMPR). The Court noted that the Veteran did not appeal the Board’s denial of entitlement to a rating in excess of 10 percent for his sciatic nerve disability. The Board notes that since the issue on appeal was addressed in the December 2018 supplemental statement of the case, additional evidence has been associated with the claims file, including VA treatment records dated from June 2002 to January 2021; and February 2020 and October 2020 VA examinations. However, these records provide information that is either duplicative of the prior evidence of record or has no material effect on the outcome of the Veteran's earlier effective date claim on appeal. As such, the Board finds that remand for initial AOJ review of this evidence in relation to this claim is not necessary, and there is no prejudice to the Veteran in proceeding with the adjudication of the claim. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefits flowing to the Veteran are to be avoided). Effective Date Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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 later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Under the former regulations prior to March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A "pending claim" is defined as an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). Medical records cannot constitute an initial claim for service connection; rather there must be some intent by the claimant to apply for the benefit. Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). The Court has held that an effective date can generally be no earlier than the "facts found", which include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). Entitlement to an effective date earlier than May 6, 2013 for the grant of service connection for sciatic nerve entrapment of the left lower extremity. The Veteran contends that an earlier effective date is warranted for the grant of service connection for sciatic nerve entrapment of the left lower extremity associated with his service-connected thoracolumbar degenerative joint disease (lumbar spine disability). In this case, the Veteran's lumbar spine disability was service-connected on June 20, 2001. The record shows that a June 2002 rating decision granted entitlement to service connection for thoracolumbar degenerative disease and assigned an initial 20 percent evaluation effective from June 20, 2001. The Veteran was notified of this decision as well as his appellate right in a June 2002 letter. However, the Veteran did not file a notice of disagreement. There was also no new and material evidence submitted within one year of the date of mailing of the decision. Therefore, the rating decision became final under the regulations in effect at that time. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. On January 14, 2004, the Veteran filed an increased rating claim for his lumbar spine disability. A subsequent July 2004 rating decision denied the claim. The Veteran was notified of this decision and his appellate rights in a July 2004 letter. Less than one year later on February 2, 2005, the Veteran submitted a claim for an increased evaluation for his lumbar spine disability. The AOJ then obtained a new VA examination with findings addressing the severity of the Veteran's lumbar spine disability in April 2005. The Board notes that 38 C.F.R. § 3.156(b) provides that "new and material" evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Consequently, the July 2004 rating decision did not become final, and the Veteran's January 2004 increased rating claim remained pending under 38 C.F.R. § 3.156(b). See generally Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011) (applying 38 C.F.R. § 3.156(b) to a situation involving an increased rating). In a November 2005 rating decision, the AOJ denied entitlement to an increased rating for the Veteran's lumbar spine disability. The Veteran was sent notice of this decision and his appellate rights in a November 2005 letter. However, the Veteran did not file a notice of disagreement. There was also no new and material evidence submitted within one year of the date of mailing of the decision. Therefore, the rating decision became final under the regulations in effect at that time. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. On December 19, 2006, the Veteran submitted an increased rating claim for his lumbar spine disability. In a September 2007 rating decision, the AOJ denied the claim. The Veteran was sent notification of the decision and his appellate rights in a September 2007 letter. However, the Veteran did not file a notice of disagreement. There was also no new and material evidence submitted within one year of the date of mailing of the decision. Therefore, the rating decision became final under the regulations in effect at that time. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. There was no evidence of a subsequent informal or formal increased rating claim for the Veteran’s lumbar spine disability until the Veteran submitted a statement dated on December 1, 2008 in which the Veteran requested a reevaluation of his lumbar spine disability. Although the top of this document includes a date of November 30, 2000 noted next to "HP LASERJET 3200," the letter is dated on December 1, 2008. A stamp on the letter additionally shows that the AOJ established the date of claim as December 1, 2018, the same day as the date of the letter. The AOJ denied the Veteran’s increased rating claim in a February 2009 rating decision, and the Veteran filed a timely notice of disagreement in February 2010. During the pendency of the appeal, the June 2014 DRO Decision granted entitlement to service connection for sciatic nerve entrapment of the left lower extremity effective from May 6, 2013. Rather than identifying a date of claim for the disability, the AOJ noted in the decision that the Veteran had filed a notice of disagreement in February 2010 about one of their decisions. The record shows that the Veteran never filed a separate claim for neurologic abnormalities associated with the lumbar spine disability. Review of the claims file instead shows that service connection for sciatic nerve entrapment of the left lower extremity was granted as secondary to the Veteran's lumbar spine disability during the course of his increased claim for the lumbar spine disability that was received on December 1, 2008. Thus, the award of service connection for sciatic nerve entrapment of the left lower extremity is viewed as a component of the Veteran's December 1, 2008 claim for an increased rating for the Veteran’s lumbar spine disability. Therefore, an effective date as early as December 1, 2007, is assignable if there is evidence of sciatic nerve entrapment of the left lower extremity in the one-year period prior to December 1, 2008. 38 C.F.R. § 3.400(o)(2). The Board acknowledges that the Veteran has indicated that the previous increased rating claims for his lumbar spine disability encompassed claims for associated objective neurologic abnormalities such as sciatic nerve entrapment of the left lower extremity in light of the information in medical records received during the pendency of those claims that included complaints of radicular symptoms; including an April 2004 VA examination, a June 2007 Inland Pacific Imaging MRI report; and a June 2007 VA treatment record. See 38 C.F.R. § 4.71a, Note (1), General Rating Formula for Diseases and Injuries of the Spine (providing that when rating disabilities of the spine, any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code). As discussed above, however, to the extent that the increased rating claims adjudicated prior the December 1, 2008 claim encompassed claims for any associated neurologic abnormalities, the earlier rating decisions denying those claims were not appealed and became final. Generally, a decision of the RO that is not timely appealed becomes final and binding in the absence of clear and unmistakable error (CUE). A claim for benefits based on CUE in a prior final rating decision entails special pleading and proof requirements to overcome the finality of the decision by collateral attack because the decision was not appealed during the appeal period. Fugo v. Brown, 6 Vet. App. 40 at 44 (1993); Duran v. Brown, 7 Vet. App. 216, 223 (1994). In order for a claimant to successfully establish a valid claim of CUE in a final RO rating decision, the claimant must articulate with some degree of specificity what the alleged error is, and unless the alleged error is the kind of error that, if true, would be CUE on its face, the claimant must provide persuasive reasons explaining why the result of the final rating decision would have been manifestly different but for the alleged error. Luallen v. Brown, 8 Vet. App. 92, 94 (1995); Fugo, 6 Vet. App. at 44, review en banc denied, 6 Vet. App. 162, 163 (1994) (noting that pleading and proof are two sides of the same coin; if there is a heightened proof requirement, there is, a fortiori, a heightened pleading requirement). In this case, however, the Veteran and his representative have not specifically alleged a claim of CUE in any prior, final rating decision. Since there was no document between the September 2007 final denial and the December 1, 2008 increased rating claim showing an intent to apply for an increased rating for the lumbar spine disability (or associated neurological abnormalities), the earliest date on which the claim may be considered to have been received is December 1, 2008. (Continued on the next page)   The Board notes that the Veteran's current effective date, May 6, 2013, is the date of an outpatient treatment record indicating that the Veteran reported constant back pain radiating to the left leg. In considering whether there is evidence of sciatic nerve entrapment of the left lower extremity in the one-year period prior to December 1, 2008, the record shows that the Veteran reported in his December 1, 2018 claim that he was attaching to his statement a 2-page letter from Dr. V.A. In the November 2008 letter referenced by the Veteran, Dr. V.A. noted that she had been the Veteran's primary care physician for over 10 years, and a recent October 2008 MRI of the lumbar spine documented advanced degenerative changes, disc degeneration, disc bulges consistent with degenerative changes, spondylosis, and degenerative disc disease. Dr. V.A. added that the Veteran had tried multiple medications for neuropathy. He had also been seen most recently in 2008 regarding his advanced degenerative changes in the spine, including his peripheral joint pain and chronic back pain. The record also shows that an earlier August 2007 private treatment record noted that the Veteran complained of low back pain in his left buttock, radiating down the left posterior leg and calf. The impression was chronic lumbar radiculopathy and low back pain. Affording the Veteran the benefit of the doubt, the Board finds that this evidence supports awarding an earlier effective date of December 1, 2007 for the grant of service connection for sciatic nerve entrapment of the left lower extremity associated with the Veteran’s service-connected thoracolumbar degenerative joint disease, one year prior to the date of the Veteran’s increased rating claim for his lumbar spine disability. 38 U.S.C. § 5107(b). As explained above, this is the earliest effective date that is possible in light of the Veteran’s date of claim. Accordingly, an effective date of December 1, 2007, but no earlier, is warranted for the grant of service connection for sciatic nerve entrapment of the left lower extremity. The AOJ should determine the appropriate initial disability rating for the additional period of time, a determination that the Veteran can appeal if he disagrees with such rating. K.C. SPRAGINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Modesto, Victor 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.