Citation Nr: 21040776 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-62 061 DATE: July 7, 2021 ORDER An effective date of June 26, 2013, but no earlier, is assigned for the grant of an increased rating to 20 percent for the service-connected low back disability. An effective date of June 26, 2013, but no earlier, is assigned for the grant of an increased rating to 40 percent for the service-connected diabetes mellitus, type II. Entitlement to an effective date of January 1, 2006, but no earlier, for the grant of service connection for right lower extremity radiculopathy is granted. Entitlement to an effective date of January 1, 2006, but no earlier, for the grant of service connection for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. An August 2012 Board decision, in pertinent part, granted service connection for lumbar spondylosis and denied an evaluation in excess of 20 percent for diabetes mellitus, type II. The Veteran did not appeal this decision and it became final. 2. A November 2012 rating decision implemented the August 2012 Board grant of service connection for lumbar spondylosis and awarded an evaluation of 10 percent effective January 16, 1971. 3. On June 26, 2013, the Veteran filed an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) that served as a claim for increased evaluations of his service-connected disabilities. 4. Resolving reasonable doubt in the Veteran's favor, the proper effective date for the evaluation of 20 percent for the Veteran's service-connected lumbar spondylosis and for the evaluation of 40 percent for the Veteran's service-connected diabetes mellitus, type II is the date of claim for an increased rating, June 26, 2013. 5. The Veteran's claim for entitlement to separate evaluations for radiculopathy of the bilateral lower extremities arose from a January 1971 claim for service connection for lumbar spondylosis. 6. Resolving reasonable doubt in the Veteran's favor, his radiculopathy of the bilateral lower extremities first manifested in January 2006. CONCLUSIONS OF LAW 1. The criteria for an effective date of June 26, 2013, but no earlier, are met for assignment of a 20 percent rating for low back disability. 38 U.S.C. §§ 1155, 5107, 5110(a), (b); 38 C.F.R. §§ 3.102, 3.400. 2. The August 10, 2012, Board decision denying entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 3. The criteria for an effective date of June 26, 2013, for the assignment of an increased, 40 percent, rating for diabetes mellitus, type II have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for an effective date of January 1, 2006, but no earlier, for the award of service connection for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 5. The criteria for an effective date of January 1, 2006, but no earlier, for the award of service connection for radiculopathy 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 CONCLUSIONS The Veteran served on active duty from March 1967 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision that, in pertinent part, granted service connection for radiculopathy of the right lower extremity femoral nerve and assigned an evaluation of 20 percent effective October 9, 2013, granted service connection for radiculopathy of the left lower extremity femoral nerve and assigned an evaluation of 10 percent effective October 9, 2013, granted an increased evaluation of 40 percent for diabetes mellitus, type II effective October 9, 2013, and granted an increased evaluation of 20 percent for lumbar spondylosis effective October 9, 2013. In November 2016, the RO granted an earlier effective date of September 17, 2009, for the date of service connection for radiculopathy of the bilateral lower extremities. The Veteran provided testimony during a videoconference hearing before the undersigned in March 2020. A transcript has been associated with the record. Unfortunately, the audio recording of the hearing contained multiple inaudible notations. In a March 2021 letter, the Veteran was offered the opportunity to testify at another hearing. The Veteran did not request another hearing within the allotted 30 days. As such, the Board may proceed with appellate review. Effective Date 1. An effective date of June 26, 2013, but no earlier, is assigned for the grant of an increased rating to 20 percent for the service-connected low back disability In this case, a November 2012 Rating Decision effectuated the August 2012 Board decision, which granted service connection for the Veteran's back disability. The November 2012 rating decision evaluated the Veteran's low back disability at 10 percent, effective January 16, 1971. The Veteran did not appeal the November 2012 rating decision. Instead, the Veteran filed a claim for increased compensation based on unemployability on June 26, 2013. In October 2013, the RO assigned the current 20 percent disability rating effective October 9, 2013. The Board finds that a 20 percent disability rating was warranted throughout the claim for an increased rating. The Board has specifically reviewed the evidence one year prior to the current claim and has found that the evidence does not demonstrate that an increased disability rating is factually ascertainable prior to the date of the claim. While VA treatment records and a February 2013 VA examination document continued complaints of and treatment for back pain, the evidence does not demonstrate range of motion findings severe enough to warrant a 20 percent disability evaluation, any evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or any evidence of ankylosis. As the claim for an increased evaluation was received prior to the date that the increased disability evaluation for the Veteran's back disability was factually ascertainable an effective date prior to the date of the claim is not warranted. Resolving all doubt in the Veteran's favor, the Board finds that the proper effective date of the increased 20 percent disability rating is the date of the increased rating claim, June 26, 2013. 2. An effective date of June 26, 2013, but no earlier, is assigned for the grant of an increased rating to 40 percent for the service-connected diabetes mellitus By way of background, in a February 2010 rating decision, the RO granted service connection for diabetes mellitus, type II and assigned a 20 percent evaluation, effective March 9, 2009, the date of the Veteran's claim for service connection. The Veteran disagreed with the initial evaluation assigned and, in an August 2012 decision, the Board denied an initial evaluation in excess of 20 percent for diabetes mellitus, type II. The Veteran did not appeal the August 2012 Board decision and it became final. 38 U.S.C. § 7105(b); 38 C.F.R. § 3.104. Because the August 2012 Board decision became final, the effective date for an increased evaluation in this case is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). The Board finds that a 40 percent disability rating was warranted throughout the claim for an increased rating. The Board has specifically reviewed the evidence one year prior to the current claim and has found that the evidence does not demonstrate that an increased disability rating is factually ascertainable prior to the date of the claim. While VA treatment records document continued treatment for diabetes mellitus, the evidence does not demonstrate his diabetes mellitus, type II required restriction of activities prior to that finding at the October 2013 VA examination. As the claim for an increased evaluation was received prior to the date that the increased disability evaluation for the Veteran's diabetes mellitus, type II was factually ascertainable an effective date prior to the date of the claim is not warranted. Resolving all doubt in the Veteran's favor, the Board finds that the proper effective date of the increased 40 percent disability evaluation is the date of the increased evaluation claim, June 26, 2013. 3. An earlier effective date of January 1, 2006, but no earlier, for the grant of service connection for right lower extremity radiculopathy 4. An earlier effective date of January 1, 2006, but no earlier, for the grant of service connection for left lower extremity radiculopathy The Veteran seeks an effective date prior to September 17, 2009, for an award of service connection for right and left lower extremity radiculopathy. He asserts that the effective date for right and left lower extremity radiculopathy should be the same effective date as that of service connection for the lumbar spine disability because right and left lower extremity radiculopathy are secondary to the lumbar spine disability. Indeed, the Veteran testified that his radiculopathy began in 1971. The record reflects that service connection for right and left lower extremity radiculopathy was granted as secondary to the service-connected lumbar spine disability during the initial rating period for the lumbar spine disability as the issue had been continuously pursued by the Veteran. Accordingly, it is part and parcel of the lumbar spine claim. Therefore, the Board finds that the inferred date of claim for service connection for the right and left lower extremity radiculopathy is the date of claim for service connection for the lumbar spine disability, which has been assigned as January 16, 1971. The Board next finds that entitlement arose on January 1, 2006, which is the first evidence of record of a neurological disability of the lower extremities as secondary to the lumbar spine disability. Specifically, while seeking private treatment in April 2006, the Veteran's doctor noted that he continued to have back pain that radiated down to his legs. The private treatment record noted that the Veteran had not had this problem prior to January 2006. Indeed, upon thorough review of the Veteran's file, the Board notes that despite the Veteran's intermittent treatment for his lower back pain prior to January 2006, the Veteran's medical record does not reflect complaints of pain radiating to his legs prior to that point. However, there are multiple notations of radiating pain since that time. Eventually, the radiating pain was diagnosed as radiculopathy of the bilateral lower extremities at the October 2013 VA examination. Based on the foregoing facts, the Board finds the evidence is at least in equipoise as to whether the Veteran had radiculopathy of the lower extremities as early as January 2006. Therefore, resolving reasonable doubt in the Veteran's favor, the Board concludes that an effective date of January 1, 2006, is warranted for the award of service connection for radiculopathy of each lower extremity. 38 U.S.C. § 5017(b); 38 C.F.R. § 3.400. In this regard, the Board acknowledges the Veteran is competent to describe some symptoms of radiculopathy such as pain radiating from his back down into his bilateral lower extremities. In addition, the Board finds his reports of radicular symptoms since January 2006 are credible because they are generally consistent and were often made in the context of seeking medical treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care). Finally, the Board emphasizes that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). (Continued on the next page) However, the record does not support the Veteran's contention that his radiculopathy began prior to January 2006. As noted above, the medical treatment records reflect that the Veteran began to experience radiating pain in January 2006. Indeed, while the Veteran sought treatment for his low back disability prior to that time, there is no indication that the Veteran's radiating pain began prior to January 2006. In sum, the inferred date of claim for service connection for right and left lower extremity radiculopathy is January 16, 1971, and the date entitlement arose is January 1, 2006, as the pain radiating down into his bilateral lower extremities was first reported and has continued since that time. Accordingly, the Board finds that January 1, 2006, is the appropriate effective date because it is the latter of the date of claim and date entitlement arose. 38 C.F.R. § 3.400. Thus, the Board finds that an effective date of January 1, 2006, but not earlier, for the grant of service connection for right and left lower extremity radiculopathy is warranted. 38 C.F.R. § 3.400. I. Cannaday Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelly A. Gastoukian 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.