Citation Nr: 21025521 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-58 962A DATE: April 28, 2021 ORDER An effective date prior to January 22, 2016, for the grant of an increased rating of 20 percent for a lumbar spine (low back) disability is denied. An effective date prior to January 22, 2016, for the grant of service connection for right lower extremity radiculopathy associated with the back disability is denied. An effective date prior to January 22, 2016, for the grant of service connection for left lower extremity radiculopathy associated with the back disability is denied. FINDINGS OF FACT 1. The Veteran’s intent to file a claim was received January 22, 2016, followed by a complete claim for increase for the low back disability within one year. 2. There was no factually ascertainable increase to 20 percent for the back disability, or entitlement to service connection for right or left lower extremity radiculopathy as part of the increase, within one year prior to January 22, 2016. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to January 22, 2016, for the grant of an increased rating of 20 percent for a lumbar spine (low back) disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3. 2. The criteria for an effective date prior to January 22, 2016, for the grant of service connection for right lower extremity radiculopathy associated with the back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3. 3. The criteria for an effective date prior to January 22, 2016, for the grant of service connection for left lower extremity radiculopathy associated with the back disability are not met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2007 to August 2007 and December 2008 to March 2010, with prior active duty for training in 2006. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal a June 2016 rating decision. In December 2019, the Board remanded these issues. 1. , 2., and 3. An effective date prior to January 22, 2016, for the grant of an increased rating of 20 percent for a lumbar spine (low back) disability; the grant of service connection for right lower extremity radiculopathy; and the grant of service connection for left lower extremity radiculopathy In his March 2017 notice of disagreement and correspondence, the Veteran asserted that an earlier effective date from his 2012 initial claim for service connection for a back disability should be awarded for his increased rating for the back disability and separate ratings for associated left and right lower extremity radiculopathies. Unless specifically provided otherwise in applicable law, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application for said benefits. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If an increase in disability level was factually ascertainable within one year prior to receipt of the increased rating claim, then the effective date will be the date on which that increase is shown to have occurred; otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Because VA treatment records from the one-year period prior to January 22, 2016, were not of record, the Board remanded these three issues in December 2019 to attempt to obtain those records and readjudicate the earlier effective date issues. As noted in the April 2020 supplemental statement of the case, all available VA treatment records from multiple identified facilities were already of record. This includes records from 2010 to 2012 and since January 2016. Additional VA treatment records were obtained through March 2020, but no records were found from January 2015 to January 2016, and the Veteran has not identified outstanding VA or non-VA treatment records relevant to his back or lower extremities. Previously, the Veteran’s February 9, 2012, formal claim for service connection for a back disability was granted in an October 2013 rating decision. That decision included consideration of VA treatment records through August 2012. He was notified of the decision in an October 2013 letter, along with his appellate rights. He did not initial an appeal, and no new and material evidence was received within one year. Therefore, the decision became final. See 38 U.S.C. §§ 5104(a), 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Only a claim for increase may be addressed. An effective date of January 22, 2016, was assigned based on the date of receipt of the Veteran’s Intent to File, followed by a complete formal claim for an increased evaluation for the lumbar spine condition within one year. 38 C.F.R. § 3.155(b). The awards of an increase for the back disability and separate lower extremity radiculopathy ratings were based in part on a 2016 examination that showed additional low back impairment and mild lower extremity symptoms. The Veteran reported current symptoms of dull intermittent back pain that increases with activities and intermittent pain and numbness in the lower extremities. He indicated that he has sharp pain three to four times a year, which does not suggest an increase within one year prior to the Veteran’s January 2016 intent to file. Because the decision on the Veteran’s service connection claim became final, and there is no evidence relevant to the severity of his back or lower extremity conditions within one year prior to his claim for increase, the appropriate effective date is the date of the intent to file on January 22, 2016. There is no reasonable doubt to be resolved in the Veteran’s favor, and the appeals are denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.