Citation Nr: 22013535 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-41 539 DATE: March 9, 2022 ORDER Entitlement to an effective date prior to February 10, 2014, for entitlement to service connection for radiculopathy of the left lower extremity is denied. Entitlement to an effective date prior to February 10, 2014, for entitlement to a total disability rating based upon individual unemployability is denied. Entitlement to an effective date prior to February 10, 2014 for entitlement to basic eligibility to Dependents' Educational Assistance benefits pursuant to 38 U.S.C. Chapter 35 is denied. REMANDED Entitlement to an evaluation greater than 10 percent for right knee patellofemoral pain disorder is remanded. Entitlement to an evaluation greater than 10 percent for left knee patellofemoral syndrome is remanded. Entitlement to an evaluation greater than 20 percent for chronic lumbar strain with facet hypertrophy and intervertebral disc syndrome is remanded. Entitlement to an evaluation greater than 10 percent for radiculopathy of the right lower extremity is remanded. FINDINGS OF FACT 1. In a March 2002 rating decision, the Veteran's claim for a TDIU was denied. 2. On February 10, 2014, VA received the Veteran's claim for entitlement to a TDIU, which was also construed as a claim for an increased evaluation for her service-connected back disability. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 10, 2014, for entitlement to service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for an effective date prior to February 10, 2014, for entitlement to a total disability rating based upon individual unemployability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. 3. The criteria for an effective date prior to February 10, 2014, for entitlement to basic eligibility to Dependents' Educational Assistance have not been met. 38 U.S.C. §§ 3501, 3510,5110; 38 C.F.R. §§ 3.400, 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from May 1992 to November 1994. These matters are on appeal from September 2014 and December 2014 rating decisions. EFFECTIVE DATES Except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). Under the former regulations governing informal claims, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his representative, could be considered an informal claim. Such informal claim had to identify the benefit sought. Upon receipt of an informal claim, if a formal claim had not been filed, an application form was to be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it would be considered filed as of the date of receipt of the informal claim. When a claim had been filed which met the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening would be accepted as a claim. 38 C.F.R. § 3.155. Reports of examination or hospitalization from VA, private physicians, or state or other institutions, could also be accepted in certain circumstances as claims for increase or claims to reopen. 38 C.F.R. § 3.157(a). Significantly, receipt of such reports of examination or hospitalization could only be accepted as an informal claim for increased benefits if a formal claim for compensation had been previously allowed or a formal claim for compensation disallowed for the reason that the service-connected disability was not compensable in degree. 38 C.F.R. § 3.157(b). With respect to evidence from a private physician or layman in particular, the date of receipt of such evidence was accepted as the date of receipt of an informal claim when the evidence furnished by or on behalf of the claimant was within the competence of the physician or lay person and showed the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157(b)(2). 1. Entitlement to an effective date prior to February 10, 2014, for entitlement to service connection for radiculopathy of the left lower extremity. 2. Entitlement to an effective date prior to February 10, 2014, for entitlement to a TDIU. 3. Entitlement to an effective date prior to February 10, 2014 for entitlement to basic eligibility to Dependents' Educational Assistance pursuant to 38 U.S.C. Chapter 35. The Veteran contends that she is entitled to earlier effective dates for the grants of TDIU, Dependents' Educational Assistance benefits, and service connection for radiculopathy of the left lower extremity. The Veteran's attorney has argued that the Veteran should be awarded a TDIU, effective December 1, 2003, the date that she met the schedular requirements for a TDIU. They contend that VA's receipt of Social Security Administration records reasonably raised the claim of entitlement to a TDIU. The Veteran initially filed a claim for a TDIU on December 13, 2001. She indicated that her service-connected knee disability precluded her from obtaining substantial gainful employment. She was last employed in March 2001 as a cashier. The Veteran is a high school graduate with some college education. In a March 2002 rating decision, the Veteran's claim for a TDIU was denied. She was in receipt of service connection for chronic left knee pain rated as 10 percent disabling and service connection for endometriosis rated as zero percent disabling. In July 2002, the Veteran submitted a timely notice of disagreement with the March 2002 rating decision. A statement of the case was issued in October 2002. The Veteran did not submit a timely appeal. In October 2003, VA obtained (on its own accord) the Veteran's Social Security Administration records, which showed she was disabled, effective July 15, 1999, due to osteoarthritis and endometriosis. In January 2005, the Veteran was granted service connection for chronic lumbosacral strain with right sciatic symptoms effective September 24, 1999. On February 10, 2014, VA received the Veteran's claim for entitlement to a TDIU. In a September 2014 rating decision, the Veteran was granted service connection for radiculopathy of the left lower extremity and assigned an effective date of February 10, 2014. Finally, in a December 2014 rating decision, the Veteran was granted a TDIU and Dependents' Educational Assistance, and assigned an effective date of February 10, 2014. The Board has considered the Veteran's and her representative's arguments. However, the persuasive weight of the evidence demonstrates that February 10, 2014, is the earliest effective date that may be assigned under the law for the grants of service connection for radiculopathy of the left lower extremity, the grant of a TDIU, and the grant of Dependents' Educational Assistance. February 10, 2014, is the date of the first claim for TDIU after the March 2002 denial of a TDIU. Additionally, there are no other formal or informal claims for service connection for radiculopathy or an increased evaluation her service-connected back disability. VA obtained the Veteran's Social Security Administration records as it was developing the claims of entitlement to service connection for low back, right hip, and right knee disorders. They were not submitted by the Veteran and as such cannot be considered as an informal claim for a TDIU. Furthermore, service connection claims are not considered to be inferred claims for a TDIU. See Rice v. Shinseki 22 Vet. App. 447 (2009). Additionally, there was no evidence received within one yar of the Veteran's claim that indicates she was unable to maintain substantially gainful employment due to her service-connected disabilities or that she had radiculopathy of her left lower extremity as a result of her service-connected back disability. The Veteran also seeks an earlier effective date for Dependents' Educational Assistance benefits pursuant to 35, Title 38 of the United States Code. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Therefore, an effective date prior to February 10, 2014, is not warranted. Based upon the forgoing, effective dates prior to February 10, 2014, for the grants of TDIU, Dependents' Educational Assistance benefits, and service connection for radiculopathy of the left lower extremity is denied. REASONS FOR REMAND 1. Entitlement to an evaluation greater than 10 percent for right knee patellofemoral pain disorder is remanded. 2. Entitlement to an evaluation greater than 10 percent for left knee patellofemoral syndrome is remanded. 3. Entitlement to an evaluation greater than 20 percent for chronic lumbar strain with facet hypertrophy and intervertebral disc syndrome is remanded. The Veteran underwent her most recent VA back and knee examinations in November 2017. These examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups. Upon remand, another VA examination must be obtained. 4. Entitlement to an evaluation greater than 10 percent for radiculopathy of the right lower extremity is remanded. Finally, because the Veteran's radiculopathy will be evaluated at her remanded VA back examination, the issues are inextricably intertwined. A remand of the radiculopathy claim is required. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected right knee patellofemoral pain disorder and left knee patellofemoral syndrome is remanded. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected chronic lumbar strain with facet hypertrophy and intervertebral disc syndrome. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to an evaluation greater than 10 percent for radiculopathy of the right lower extremity. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.