Citation Nr: 22010156 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 97-23 663A DATE: February 22, 2022 ORDER Entitlement to a separate evaluation for right lower extremity radiculopathy prior to July 28, 1995 is denied. FINDING OF FACT There was no pending claim of entitlement to a separate evaluation for right lower extremity radiculopathy prior to July 28, 1995. CONCLUSION OF LAW The criteria for entitlement to a separate evaluation for right lower extremity radiculopathy prior to July 28, 1995 have not been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. §§ 3.160(c), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1964 to October 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in November 1996, March 2010, and March 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). A May 2019 Board decision granted entitlement to an effective date of July 28, 1995 for the award of a separate 10 percent evaluation for right lower extremity radiculopathy. The Board also denied entitlement to a separate evaluation prior to then. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 memorandum decision, the Court vacated and remanded the May 2019 decision with instructions for the Board to consider in the first instance whether the Veteran's 1991 increased rating claim for low back ache reasonably encompassed a claim for right lower extremity radiculopathy. The matter is again before the Board. The issues of entitlement to individual unemployability, service connection for bladder cancer, and service connection for left lower extremity radiculopathy are separately on appeal and undergoing additional development. Those claims will be addressed by the Board on a later date. 1. Entitlement to a separate evaluation for right lower extremity radiculopathy prior to July 28, 1995 is denied. The Veteran asserts that the effective date for the grant of a separate evaluation for right lower extremity radiculopathy should be July 30, 1991. See September 2021 Appellate Brief. The question the Board must resolve is whether there was a pending claim for right lower extremity radiculopathy prior to July 28, 1995. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). Where a claim is granted after the submission of new and material evidence, the effective date is the later of the date of receipt of the new claim or the date entitlement arose. 38 C.F.R. § 3.400(q)(2). Prior to March 24, 2015, a claim was "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). In February 1975, the Veteran filed for service connection for a back condition. The same year, a regional office (RO) granted a noncompensable rating for myositis of the lumbar spine, effective February 25, 1975. On July 30, 1991, he filed a claim for an increased disability rating for "low back ache." In December 1991, the Veteran wrote that his back condition was getting worse. July and December 1992 VA treatment records documents the Veteran had ongoing chronic back pain and needed further testing to rule out whether he had radiculopathy of the right lower extremity. At a 1993 VA medical examination, the examiner diagnosed right S1 radiculopathy and lumbosacral myositis. In an April 1994 rating decision, the RO awarded an increased 10 percent rating for the service-connected lumbar myositis only, effective July 30, 1991. The Veteran did not appeal that decision, nor was new and material evidence actually or constructively associated with the file during the appellate period. 38 C.F.R. § 3.156(b); see also Turner v. Shulkin, 29 Vet. App. 207 (2018). Effective September 26, 2003, there was a regulatory amendment allowing for separate evaluations of neurological manifestations associated with spine disabilities. 68 Fed. Reg. 51,454 (Aug. 27, 2003) (eff. Sept. 26, 2003). However, the assignment of separate ratings for neurologic abnormalities associated with a spine disability was not precluded by the rating criteria prior to the 2003 amendment. See 38 C.F.R. § 4.71a (2000). Instead, the 2003 amendment simply added an explicit requirement that associated neurologic abnormalities be rated separately. Since at least January 1994, VA was permitted to award separate ratings for neurological manifestations of a back disability under Bierman v. Brown, 6 Vet. App. 125, 131-32 (1994) (finding inadequate a Board decision that did not explain why separate ratings for a spinal disability and secondary neurological defects violated the rule against pyramiding). The Board finds there was an informal claim for benefits for a right lower extremity condition prior to the April 1994 rating decision. The Veteran submitted a claim indicating that his lower back condition had gotten worse, and available VA medical records indicated the lumbar spine condition now involved right lower extremity radiculopathy. See December 1992 VA treatment note; see December 1993 VA examination report. VA was not precluded from considering a separate evaluation for right lower extremity radiculopathy at the time the Veteran filed his July 1991 increased rating claim, and the Veteran is presumed to seek the maximum rating for the claimed worsening lower back condition, to include neurologic manifestations. Thus, there was an informal claim for right lower extremity radiculopathy prior to the April 1994 rating decision. However, the Board also finds that the April 1994 rating decision implicitly denied a separate evaluation for right lower extremity radiculopathy and that decision became final. Therefore, there was no pending claim for right lower extremity radiculopathy prior to July 28, 1995. Generally, a claim for veterans' benefits remains pending until it is finally adjudicated in a rating decision or a Board decision. 38 C.F.R. § 3.160(c). It also remains pending if it is finally adjudicated, but VA failed to provide fair notice that the benefit was denied. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc); 38 U.S.C. § 5104; 38 C.F.R. § 3.103. When a claimant files multiple claims at the same time, and a rating decision explicitly addresses one of the claims, but does not explicitly address the other claim, the second claim is "deemed denied," meaning the appeal period for the second claim also begins to run. See Andrews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005); see also Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006) (applying Andrews to reject an argument that an informal or raised claim for service connection for a psychiatric disorder remained pending because a 1985 rating decision granted entitlement to service connection for status post head trauma without separately addressing entitlement based on a psychiatric disorder). If the decision that implicitly denied the claim is now final, the claimant will not be able to obtain an effective date prior to that final decision unless he or she files a motion to revise the decision based on clear and unmistakable error. To determine whether a claim has been implicitly denied, the key issue is whether an objective reasonable claimant would have been on notice that entitlement to the claimed benefit was implicitly adjudicated and denied. Adams v. Shinseki, 568 F.3d 956, 963-65 (Fed. Cir. 2009). If the claimant received sufficient notice of the implicit denial, such that he or she could reasonably be expected to understand that benefits would not be awarded for the disability that formed the basis of the pending claim, the pending claim is "deemed denied" and no longer pending. Id. at 960-61. To evaluate these claims, the Court has outlined four factors for consideration: (1) specificity or relatedness of the claims involved; (2) specificity of the adjudication - whether the decision at issue adjudicated the pending claim using language that could reasonably be inferred as denying the pending claim; (3) the timing of the claims involved; and (4) whether the claimant was represented at the time. See Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010) (Cogburn I). In the April 1994 rating decision, the RO noted that the Veteran had worsening low back pain with use of the right leg. The RO considered the VA examination report documenting radiculopathy of the right lower extremity. The RO specifically found that the Veteran did not meet the requirements for an evaluation under the diagnostic code (DC) 5293 for intervertebral disc syndrome. At the time of the April 1994 rating decision, DC 5293 contemplated symptoms of sciatica. See 38 C.F.R. § 4.71a DC 5293 (1994). Specifically, in 1994 DC 5293 provided for a 60 percent evaluation for persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc. By finding the Veteran did not meet the requirements for an evaluation under DC 5293, the RO implicitly found there were no sciatica symptoms. Although the Veteran's attorney asserts that the April 1994 rating decision only addressed the Veteran's orthopedic complaints based on limitation of motion and failed to address neurologic symptoms, the Board does not find this argument persuasive in light of the RO's findings related to DC 5293 for intervertebral disc syndrome. Turning to the Cogburn factors, the claims of entitlement to an increased evaluation for a back disorder and associated radiculopathy are clearly related in light of the VA treatment records from 1992 and 1993 noting radiculopathy associated with the back condition. The Veteran had stated that his overall back condition was worsening, which would reasonably include the associated diagnosis of radiculopathy. The Veteran and his attorney also argue that his 1991 submission should be interpreted as an informal claim for a separate evaluation for radiculopathy. Thus, the claims are clearly related. Second, the April 1994 decision did address evidence relevant to the informal claim for radiculopathy by noting symptoms of worsening back pain on use of the right leg that interfered with walking and the 1993 VA examination that found radiculopathy. The RO specifically found that there was no basis for a higher evaluation under DC 5293, which includes contemplation of symptoms of sciatica. See Deshotel, 457 F.3d at 1261-62 (holding that informal claim for psychiatric disability was implicitly denied in rating decision that expressly addressed claim for residuals of head injury because it noted that a VA examination found "no psychiatric symptomatology noted at present time"); see also Adams v. Shinseki, 568 F.3d 956, 963 (Fed. Cir. 2009) (reasonable notice that claim for any heart condition had been denied where Board decision noted that it had reviewed all medical reports and noted that medical evidence "d[id] not disclose active rheumatic fever or other cardiac pathology" in service). Regarding the third factor, the claims were filed together. The Veteran generally claimed the back condition was worsening and within a year of that claim there was medical evidence indicating radiculopathy associated with chronic back pain. See July 1992 and December 1992 VA treatment notes (noting rule out right lower extremity radiculopathy in the context of chronic back pain). Turning to the last Cogburn factor, a copy of the April 1994 rating decision notification letter was sent to the Veteran's representative. In light of the foregoing, the Board finds that the claim for a separate evaluation for right lower extremity radiculopathy was implicitly denied in the April 1994 rating decision that became final. Therefore, there was no pending claim for right lower extremity radiculopathy prior to July 28, 1995 and the claim for an earlier effective date is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.