Citation Nr: 21040751 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 15-07 698 DATE: July 6, 2021 ORDER Service connection for radiculopathy of the right lower extremity (previously characterized as muscle and joint pains of the legs) is granted. Service connection for radiculopathy of the left lower extremity (previously characterized as muscle and joint pains of the legs) is granted. Service connection for a right hip disability is granted. Service connection for a left hip disability is granted. An effective date earlier than September 13, 2012 for the assignment of service connection for irritable bowel syndrome (IBS) is denied. FINDINGS OF FACT 1. The Veteran has a diagnosis of radiculopathy of the right lower extremity which is proximately due to the Veteran's previously service-connected back disability. 2. The Veteran has a diagnosis of radiculopathy of the left lower extremity which is proximately due to the Veteran's previously service-connected back disability. 3. The Veteran has been diagnosed with arthritis of the right hip and the Veteran has continuously manifested symptomology associated with arthritis of the right hip since separation from service. 4. The Veteran has been diagnosed with arthritis of the left hip and the Veteran has continuously manifested symptomology associated with arthritis of the left hip since separation from service. 5. The Veteran filed a claim for IBS on September 12, 2013, and the Veteran has been assigned service connection for IBS effective September 12, 2013. CONCLUSIONS OF LAW 1. The criteria for service connection for radiculopathy of the right lower extremity (previously characterized as muscle and joint pains of the legs) have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304; 3.310 (2019). 2. The criteria for service connection for radiculopathy of the left lower extremity (previously characterized as muscle and joint pains of the legs) have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304; 3.310 (2019). 3. The criteria for service connection for a right hip disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137; 5107 (2012); 38 C.F.R. §§ 3.303, 3.304; 3.307; 3.309 (2019). 4. The criteria for service connection for a left hip disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137; 5107 (2012); 38 C.F.R. §§ 3.303, 3.304; 3.307; 3.309 (2019). 5. The criteria for an effective date earlier than September 13, 2012 for the assignment of service connection for IBS have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from March 1988 to January 1999 and from January 2002 and August 2003. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. In the March 2015 substantive appeal perfecting this matter to the Board, the Veteran indicated that she did not desire a personal hearing before the Board. The Veteran's claims for service connection for radiculopathy were originally characterized as muscle and joint pains of the legs. In light of a diagnosis of radiculopathy offered to explain the Veterans lay reports, the Board has recharacterized the Veteran's claims accordingly. Clemons v. Shinseki, 23 Vet. App. 1 (2009). These matters were previously before the Board, and, in December 2018, the Board remanded these matters for further development. Further development in substantial compliance with the Board's previous remand instructions has been completed. The Board notes that in November 2020 the Veteran attempted with withdraw from the legacy appellate framework in favor of opting into Higher-Level review. That same month however, the RO was unable to process the Veteran's request, and, as such, these matters remain under the appellate framework. The Board also notes that the Veteran has a separate appeal for service connection for sleep apnea pending. Nevertheless, the Veteran has requested a personal hearing before the Board in order to discuss that claim, and a hearing has been scheduled for May 2021. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Furthermore, service connection can be established through application of statutory presumptions, including for chronic diseases like arthritis and diseases of the nervous system, when manifested to a compensable degree within a year of separation from service; or there is continuity of symptomology since separation from service. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted on a secondary basis for diseases that are proximately due to or aggravated by a previously service-connected disability. 38 C.F.R. § 3.310. 1. Service connection for radiculopathy of the right lower extremity (previously characterized as muscle and joint pains of the legs) is granted. 2. Service connection for radiculopathy of the left lower extremity (previously characterized as muscle and joint pains of the legs) is granted. At issue is whether the Veteran is entitled to service connection for muscle and joint pains in both legs. The Veteran underwent a VA examination in November 2019. After listening to the Veteran's lay reports, the examiner diagnosed the Veteran with radiculopathy in the bilateral lower extremities, and the examiner opined that the Veteran's radiculopathy of the bilateral lower extremities was proximately due to the Veteran's back disability. The Veteran has been granted service connection for her back disability. See October 2020 Rating Decision Code Sheet. Therefore, the weight of the evidence indicates that the Veteran's radiculopathy of the bilateral lower extremities is proximately due to a previously service-connected disability. 38 C.F.R. § 3.310. Additionally, the Board notes that separate disability ratings are normally assigned for neurological abnormalities (such as radiculopathy) that are associated with the spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). As such, service connection for radiculopathy of the bilateral lower extremities is granted. 3. Service connection for a right hip disability is granted. 4. Service connection for a left hip disability is granted. At issue is whether the Veteran is entitled to service connection for a bilateral hip disability. The weight of the evidence indicates that the Veteran is entitled to service connection. The Veteran's service treatment records are silent for a diagnosis of or treatment for a left or right hip disability during the Veteran's periods of active duty. In the separation examination from her second period of active duty, the Veteran's lower extremities were evaluated as normal. In a contemporaneous survey of medical history however, the Veteran reported arthritis in both hips. The Veteran's civilian treatment records indicate that the Veteran continued to manifest bilateral hip pain thereafter. The Veteran underwent a VA examination in August 2009. The Veteran reported that she had been diagnosed with arthritis in both hips, and that the condition had existed for years prior to the examination. The examiner opined that the Veteran did not have a current diagnosis of a bilateral hip disability. The Veteran underwent another VA examination in November 2019. The examiner diagnosed the Veteran with a bilateral hip strain, but the examiner opined that the Veteran's hips were not aggravated by the Veteran's previously service-connected bilateral knee disability. The weight of the evidence indicates that the Veteran has a current diagnosis of osteoarthritis of the bilateral hips. Additionally, the weight of the evidence indicates that the Veteran manifested bilateral hip pain since separation from service. Arthritis, including arthritis of the hips, is a chronic condition. Therefore, the Veteran meets the criteria for service connection for arthritis of the bilateral hips on a presumptive basis. 38 C.F.R. § 3.310. Here, the weight of the probative evidence of record indicates that the Veteran has been diagnosed with a chronic disability of the hips, and that the Veteran has manifested continuous symptomology since separation from service. Therefore, the evidence in this case is evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such entitlement to service connection for a neurological bladder disorder is denied. 5. An effective date earlier than September 13, 2012 for the assignment of service connection for IBS is denied. At issue is whether the Veteran is entitled to an effective date earlier than September 13, 2012 for the assignment of service connection for IBS. The weight of the evidence indicates that the Veteran is not entitled to an earlier effective date. The Board notes that, in December 2018, the Board previously found that a separate clear and unmistakable error (CUE) claim that had not been adjudicated by the RO was inextricably intertwined with the Veteran's earlier effective date claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). In October 2020 however, the RO adjudicated the Veteran's CUE claim, and the Veteran did not appeal the result. Therefore, the issue is no longer pending, and the Board may dispose of the Veteran's earlier effective date claim without engaging in piecemeal appellate litigation. The Veteran first filed for service connection for constipation in July 2003, and, in September 2004, the RO denied service connection. The Veteran file a notice of disagreement (NOD) appealing the denial in October 2004. In March 2006, a statement of the case (SOC) was issued responsive to the October 2004 NOD. The Veteran, however, failed to perfect a timely appeal to the Board. In March 2006, the RO continued the previous denial of service connection for constipation. The decision became final after the Veteran failed to file an NOD or submit additional evidence within one year of notification of the decision. The Veteran filed a claim for service connection for Crohn's disease in October 2008, and, in October 2009, the RO denied the Veteran's claim for service connection. In January 2010, the Veteran filed a NOD appealing the denial. A responsive SOC was issued in October 2011. The Veteran failed to perfect a timely appeal to the Board, and the October 2009 rating decision became final. The Veteran filed a claim for service connection for IBS on September 13, 2012, and, in October 2013, the RO granted service connection and assigned a disability rating of 10 percent effective September 13, 2012. In July 2014, the Veteran filed a NOD appealing the effective date of the award. Except as otherwise provided, the effective date of an evaluation and award of compensation of a reopened claim will be the date of receipt of the claim to reopen or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The Board interprets the Veteran's various claims for constipation, Crohn's disease, and IBS as each within the scope for a single claim for gastric distress. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Veteran sought and was denied service connection for gastric distress multiple times. Then, the Veteran filed to reopen his claim in September 12, 2013, and, under a diagnosis of IBS, this claim was ultimately successful. Thus, the earliest effective date that the Veteran could be assigned was September 12, 2013. The effective date of for the assignment of service connection for IBS is already September 12, 2013. Therefore, the Veteran has already been assigned the earliest effective date possible for the assignment of service connection for IBS, and an effective date earlier than September 12, 2013 is denied. Idongesit T. Umo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.