Citation Nr: 21020911 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 190724-16279 DATE: April 8, 2021 ORDER The April 15, 2020 Board decision as to the issue of entitlement to an earlier effective date for radiculopathy, left lower extremity, is vacated. The April 15, 2020 Board decision as to the issue of entitlement to an earlier effective date for radiculopathy, right lower extremity, is vacated. An effective date of January 22, 2010 is granted for the award of service connection for radiculopathy, left lower extremity. An effective date of January 22, 2010 is granted for the award of service connection for radiculopathy, right lower extremity. FINDINGS OF FACT 1. On April 15, 2020, the Board issued a decision that granted an effective date of February 11, 2013 for the award of service connection for radiculopathy of the left lower extremity and the right lower extremity. 2. Pertinent evidence that was of record was not properly considered by the Board at the time of the April 15, 2020, Board decision. 3. The date entitlement arose for the grant of service connection for radiculopathy, left lower extremity, is January 22, 2010. 4. The date entitlement arose for the grant of service connection for radiculopathy, right lower extremity, is January 22, 2010. CONCLUSIONS OF LAW 1. The April 15, 2020 Board decision as to the issue of an earlier effective date for the grant of service connection for radiculopathy, left lower extremity, is vacated. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 2. The April 15, 2020 Board decision as to the issue of an earlier effective date for the grant of service connection for radiculopathy, right lower extremity, is vacated. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 3. The criteria for an effective date of January 22, 2010, for the grant of service connection for radiculopathy, left lower extremity, have been met. 38 U.S.C. §§ 5103, 5103A, 5110; 38C.F.R. § 3.400. 4. The criteria for an effective date of January 22, 2010, for the grant of service connection for radiculopathy, right lower extremity, have been met. 38 U.S.C. §§ 5103, 5103A, 5110; 38C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to February 1980. In January 2010, the Veteran filed a claim seeking an increased rating for his service-connected back disability. In a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), his claim was denied. The Veteran timely appealed. Over the years since the filing of his appeal in August 2011, the Veteran’s claim has appeared before the Board of Veterans Appeals (Board) and the Court of Veterans Claims (CAVC). In February 2018, the Veteran filed a RAMP (Rapid Appeals Modernization Program) Opt-In Form, electing to proceed by having all eligible issues currently on appeal reviewed in the higher-level-review process. In May 2019, the RO issued a RAMP rating decision that addressed not only the Veteran’s back condition, but also his radiculopathy. As it relates specifically to radiculopathy, the RO granted service connection for radiculopathy, left lower extremity, effective March 29, 2019; and also granted service connection for radiculopathy, right lower extremity, effective March 29, 2019. In July 2019, the Veteran filed a Form 10182–Decision Review Request: Board Appeal (Notice of Disagreement), choosing to continue his appeal via Direct Review by a Veterans Law Judge under the Appeals Modernization Act (AMA). As pertinent here, the Veteran challenged the effective date for the award of service connection for radiculopathy of both his left and right lower extremity. In April 2020, the Board issued a rating decision that, among other things, assigned an earlier effective date of February 11, 2013, for the award of service connection for radiculopathy, left lower extremity and right lower extremity. In July 2020, the Veteran’s attorney filed a Motion for Reconsideration, seeking to vacate only that part of the April 2020 Board decision that pertains to the effective date of the award of service connection for radiculopathy, left lower extremity and right lower extremity. 1. Whether vacatur of the April 15, 2020 Board decision is warranted. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. In an April 15, 2020 decision, the Board issued a rating decision that, among other things, assigned an effective date of February 11, 2013, for the award of service connection for radiculopathy, left lower extremity and right lower extremity. On July 17, 2020, the Veteran’s attorney filed a Motion for Reconsideration, seeking to vacate only that part of the Board decision concerning the effective date of the award of service connection for radiculopathy of the left and right lower extremity. In the submission, the Veteran’s attorney correctly pointed out that pertinent evidence submitted to the Board but not considered in its April 2020 decision reflects an earlier date, in January 2010, on which the Veteran was diagnosed with radiculopathy of the left and right extremity. The Board thus finds that its April 15, 2020 decision was based on an incomplete consideration of the evidence of record and thus denied the Veteran due process of law. Therefore, the Board finds that a vacatur is warranted to correct this error. Effective Dates Generally, 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 the later. 38 U.S.C. § 5110(a); 38C.F.R. § 3.400. In deciding this case based on its application of the law to the pertinent facts, the Board notes that the “date of receipt” of claim means the date on which the claim was received by VA, except as to specific provisions for claims received in the State Department, the Social Security Administration, or the Department of Defense. 38 C.F.R. § 3.1(r). 2. Entitlement to an effective date earlier than February 11, 2013 for the grant of service connection for radiculopathy, left lower extremity. 3. Entitlement to an effective date earlier than February 11, 2013 for the grant of service connection for radiculopathy, right lower extremity. In this case, the Veteran seeks an effective date earlier than March 29, 2019, for the grant of service connection for radiculopathy, left lower extremity and right lower extremity. Upon thorough review of the record, the Board finds that the Veteran is entitled to an effective date of January 22, 2010, for the award of service connection for radiculopathy, left lower extremity and radiculopathy, right lower extremity. As noted above, the effective date of a claim for compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. Here, a claim for service connection for radiculopathy, left lower extremity and right lower extremity, was not filed by the Veteran–it was a downstream issue related to the evaluation of the Veteran’s service-connected back issue. Thus, the date entitlement arose will be the determining factor in this case. Here, the date entitlement arose was January 22, 2010–the date the Veteran was first diagnosed with radiculopathy of the left and right lower extremities. This is the earliest evidence of record of a diagnosis of radiculopathy etiologically related to service-connected disability. As such, the date entitlement arose, January 22, 2010, is the earliest effective date for the grant of service connection for radiculopathy, left lower extremity and radiculopathy, right lower extremity. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Board finds that the preponderance of the evidence supports the assignment of an effective date of January 22, 2010 for the grant of service connection for radiculopathy, left lower extremity and radiculopathy, right lower extremity. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts 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.