Citation Nr: 21028189 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 19-07 599 DATE: May 10, 2021 ORDER Entitlement to an effective date prior to May 28, 2014, for the award of service-connection for the Veteran's left lower extremity femoral nerve radiculopathy, is denied. Entitlement to an effective date prior to May 28, 2014, for the award of service-connection for the Veteran's right lower extremity femoral nerve radiculopathy, is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran's service connected left lower extremity femoral nerve radiculopathy is remanded. Entitlement to a disability rating in excess of 20 percent for the Veteran's service-connected left lower extremity femoral radiculopathy for the period beginning May 28, 2014, then in excess of 10 percent for the period from November 16 2018 to December 15, 2019, then in excess of 20 percent thereafter, is remanded. FINDINGS OF FACT 1. The Veteran's claim for an increased evaluation of his spine disability, which his radiculopathy claims stemmed from, was received May 28, 2014. 2. The Regional Office granted an effective date of May 28, 2014, for the Veteran's lower extremity femoral nerve radiculopathy claims in a February 2021 rating decision. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an effective date earlier than May 28, 2014, for service-connection for the Veteran's left lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for establishing entitlement to an effective date earlier than May 28, 2014, for service-connection for the Veteran's right lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2021 statement, the Veteran's attorney attempted to withdraw his representation. The Board finds that the Veteran's representative failed to submit a motion to withdraw, demonstrative of good cause, following the return of this appeal to the Board. 38 C.F.R. § 20.6. Accordingly, the Board will continue to recognize J. Michael Woods as the Veteran's representative. Earlier Effective DateLegal Criteria The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection or a claim reopened after final adjudication, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim or a claim reopened after final disallowance, "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. Prior to March 24, 2015, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim was considered to be any communication or action indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim needed to be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it had to identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Effective March 24, 2015, a change in regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160(a). Bilateral Lower Extremity Femoral Nerve Radiculopathy The Veteran was discharged from service in November 1967. The Veteran's initial claim for service connection for a "leg condition," and increased rating for his lower back disability, was May 28, 2014. The Board cannot find that an informal or formal claim existed prior to the receipt of this claim by VA. In a February 2021 rating decision, the RO assigned the date of the May 28, 2014, claim as the effective date for the Veteran's disability in this case. As noted above, since the claim was filed more than a year from when the Veteran left service, the effective date will be the date of claim or the date entitlement arose, whichever is later. The effective date assigned to the Veteran for his service-connected lower extremity femoral radiculopathy disabilities was the date of his claim. There is no statutory or regulatory authority which would allow for an earlier effective date based on the above facts. In sum, the Board finds that there is no legal basis to assign an effective date prior to May 28, 2014, for the award of service connection for the Veteran's bilateral lower extremity femoral nerve radiculopathy disabilities. The Board is sympathetic to the Veteran's claim, but it is bound by the laws and regulations that apply to veterans claims and it has no discretion in this regard. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). The claim is denied. REASONS FOR REMAND In the prior January 2021 decision, the Board remanded these matters for the purpose of obtaining a VA examination. The claim has since been returned to the Board for review. Although the Board regrets the delay in yet another remand, for the reasons in the discussion below, the agency of original jurisdiction (AOJ) has not substantially complied with the remand directives and further action is necessary in this regard. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating for Bilateral Lower Extremity Femoral Radiculopathy As part of the January 2021 Board Remand, the Board specifically requested in the remand directives that the RO obtain a VA examination where the examiner specified all of the neurological symptoms and functional impairments of the Veteran's bilateral lower extremities; then stated which symptoms are attributable to the Veteran's femoral nerve, sciatic nerve, or a separate nerve/etiology. Following the Board Remand, the Veteran was provided with a February 2021 VA Back examination. The examiner opined that the Veteran had involvement of both the sciatic and femoral nerves. However, the examiner failed to specify which symptoms the Veteran experiences are attributable to his sciatic nerve versus his femoral nerve. The Board further notes that this is the exact scenario which was the basis of both the January 2021 and September 2019 Board Remands. Therefore, the Board again does not have the information necessary to properly assign disability ratings for the Veteran's bilateral lower extremity femoral nerve radiculopathy. When VA obtains an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the matter must again be remanded for a new examination. The matters are REMANDED for the following action: Schedule the Veteran for an examination to determine the current severity and symptomology of the Veteran's radiculopathy of the femoral nerve of the bilateral legs. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: (a.) Identify all neurological symptoms and functional impairment of the bilateral lower extremities and state which symptoms and/or functional impairment are attributable to 1) the femoral nerve; 2) the sciatic nerve; or, 3) a separate nerve/etiology. The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.