Citation Nr: 23019281 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 18-19 446 DATE: March 29, 2023 ORDER An effective date of December 5, 2018, for the grant of service connection for radiculopathy of right lower extremity is granted. REMANDED The claim of entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy is remanded. The claim of entitlement to special monthly compensation based on the need for aid and attendance (SMC A&A) is remanded. FINDINGS OF FACT 1. The Veteran's last claim to service connect right lower extremity radiculopathy was denied in a January 2008 rating decision, which was not appealed. 2. A November 2013 informal claim of entitlement to a separate rating for right lower extremity radiculopathy secondary to his service-connected back disability was implicitly denied. 3. An appeal for an increased rating for the service-connected back was withdrawn in a June 2014 DRO hearing and dismissed in an April 2017 Board decision, which was not appealed. 4. In resolving all doubt in his favor, the December 5, 2018, letter notifying the Veteran that a periodic examination of his service-connected back disability was being scheduled is considered the date of his claim. 5. It is factually ascertainable that his VA treatment doctors had diagnosed right lower extremity radiculopathy more than one year prior to the December 5, 2018, letter that initiated this claim. CONCLUSION OF LAW The criteria are met to assign an effective date of December 5, 2018, for the grant of service connection for radiculopathy of right lower extremity. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1996 to February 2005. This appeal is from October 2017 and February 2019 rating decisions. In July 2021, the Veteran had a personal hearing with the undersigned VLJ. The transcript is of record, and notes that the parties clarified that the Veteran's NOD (notice of disagreement) to the February 2019 rating decision applied to all the decisions contained therein, but that they were narrowing the appeals down to entitlement to an earlier effective date and increased rating for right lower extremity radiculopathy. The Veteran's representative has requested a copy of a document noted to have been received by the Board; however, she has withdrawn that request. The Board notes she already has access to the Veteran's entire electronic claims file via the Veterans Benefits Management System (VBMS), and therefore, any request for documents is already fulfilled. 1. An effective date of December 5, 2018, for the grant of service connection for radiculopathy of right lower extremity is granted. In general, the effective date of an award of disability compensation, in conjunction with a grant of service connection, shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Under current regulations, in order for benefits to be paid or furnished to any individual under the laws administered by VA, a specific claim in the form prescribed by the Secretary must be filed. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" means a written or electronic requesting a determination of entitlement or evidencing a belief in entitlement to a specific benefit under the laws administered by VA on an application form prescribed by the Secretary. 38 C.F.R. § 3.1. Prior to March 2015, an informal claim was acceptable to establish a service connection claim. See 38 C.F.R. § 3.155(a) (repealed 2015). An informal claim included any communication or action indicating an intent to apply for one or more benefits. The communication must have identified the benefit sought. Id. In order for a document to be recognized as an informal claim, "there must be a reasonable expectation for VA to act in the manner that the claimant intended." King v. Shinseki, 23 Vet. App. 464, 470 (2010). Importantly, identification of the benefit sought need not be explicit in the claim-stating documents, but can also be found indirectly through examination of the evidence to which the documents themselves point when sympathetically read. Shea v. Wilkie, 926 F.3d 1362, 1368 (2019). The factfinder "must look beyond the four corners" of a claim in sympathetically determining what the claim-stating documents are seeking to obtain. Id. at 1369. However, the "mere presence of medical evidence" is not sufficient to indicate intent to apply for service connection or identify the benefit sought. Brannon v. West, 12 Vet. App. 32, 35 (1998). Here, the Veteran's representative argues that the effective date for right lower extremity radiculopathy should be earlier than the current effective date of January 7, 2019. She argues that he has had symptoms of right leg radiculopathy since his service, in 2003. She argues that a December 2017 VA examination was inadequate in not providing an etiological opinion for the Veteran's reported right leg symptoms. She has not argued for a specific date. At the outset, the Board notes that no allegations of CUE have been made with regard to any of the prior VA decisions. Turning to the facts, the AOJ (agency of original jurisdiction) assigned the current effective date as January 7, 2019, the date of a VA examination, and noted that was the date entitlement was shown. See 38 C.F.R. § 3.400. The Board notes the January 2019 VA examination was a reexamination for his service-connected back, scheduled as a matter of course pursuant to 38 C.F.R. § 3.327, and not in conjunction with a pending claim. The Veteran was notified that he would be subject to the reexamination via a December 5, 2018, letter. The inquiry here is whether there were any claims received and still pending prior to December 5, 2018, letter, which is what initiated the rating decision on appeal. The record shows a formal claim received in February 2005 and denied in a March 2005 rating decision. He filed another claim in October 2007, which was denied in a January 2008 rating decision. Neither of those decisions were appealed. These are the only formal claims for service connection for right lower extremity radiculopathy prior to the current effective date, and they were addressed. They were not appealed, and are no longer pending. The record shows that the Veteran's VA treatment records showed that his doctors have diagnosed him with right lumbar radiculopathy, for the first time at an April 25, 2012, primary care visit. Prior to 2015, a VA medical report could be construed as an informal claim to reopen a claim for service connection under 38 C.F.R. § 3.157 (repealed 2015). However, this regulation only applies to claims where service connection has been established, but was not granted for the reason that it was noncompensable. See Sears v. Principi, 16 Vet. App. 244, 249 (2002); see also Pacheco v. Gibson, 27 Vet. App. 21, 26 (2014)). That is not the case here-his previous claims for service connection for the right lower extremity were denied for not being diagnosed and not being related to service, respectively. Accordingly, the provisions of Section 3.157 are not applicable and the medical record showing the right lumbar radiculopathy diagnosis cannot be construed as an informal claim to reopen the service connection claim. 38 C.F.R. § 3.157(b); Sears, supra. The record shows the Veteran filed a formal claim on November 9, 2013, for an increased rating for the back, and for other disabilities, and that he indicated on his claim form that he had treatment at the VAMC (VA medical center) since 2010. As discussed above, these treatment records indicated that right lower extremity radiculopathy had been diagnosed since April 2012. Here, the Board finds that an informal claim for service connection for right lower extremity radiculopathy was reasonably raised by the November 2013 claim and associated paperwork, as it showed he was seeking a higher rating for his service-connected back, and it showed that he had a diagnosis related to the back. Importantly, under the General Rating Formula for Diseases and Injuries of the Spine, associated neurological abnormalities, if diagnosed, are to be assigned separate ratings. See 38 C.F.R. § 4.71, DCs 5235 to 5243, Note (1). Thus, as an informal claim has been identified, the next inquiry is whether it is still pending or whether it was adjudicated as part of a final decision. In certain circumstances, pursuant to the "implicit denial doctrine," "a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if (VA) did not expressly address that claim in its decision." Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). When a RO decision "discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not 'specifically' deny that claim." Ingram v. Nicholson, 21 Vet. App. 232, 255 (2007). In Ingram, the Court determined that, where a decision discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not "specifically" deny that claim. Id. The key question in the implicit denial inquiry is whether it would be clear to a reasonable person that VA's action that expressly refers to one claim is intended to dispose of others as well. Adams, 568 F.3d at 962-963. When determining whether a claim was implicitly denied, four factors must be considered: (1) "The relatedness of the claims"; (2) "the specificity of the adjudication," that is, whether "the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) "the timing of the claims"; and (4) whether "the claimant is represented." Cogburn v. Shinseki, 24 Vet. App. 205, 212-14 (2010). The key question is whether sufficient notice was provided that would allow a claimant to reasonably understand that he would not be awarded benefits for the disability asserted in his pending claim and thus decide for himself whether to accept the decision or seek redress elsewhere. Jones v. Shinseki, 619 F.3d 1368, 1373 (Fed. Cir. 2010); Adams, 568 F.3d at 965 ("[T]he implicit denial rule is, at bottom, a notice provision."). Here, the Board finds that the November 2013 informal claim for service connection for the right lower extremity was implicitly denied in a January 2014 rating decision that addressed the ratings for his service-connected back and left lower extremity radiculopathy, and did not award service connection or a rating for right lower extremity radiculopathy. The Board finds the Cogburn factors weigh in favor of this finding. First, as discussed above, a claim for service connection for right lower extremity radiculopathy is related to a claim for a higher rating for a service-connected spinal disability. A claimant is seeking the highest rating available, which would include consideration of other disabilities that have developed as a result of a service-connected disability. Further, as discussed above, the rating criteria for the back dictates that a separate rating be awarded when there are neurological abnormalities. See 38 C.F.R. § 4.71a, DCs 5235 to 5243, Note (1). As a matter of practice, VA examinations of the back include examination for neurological abnormalities, and indeed, the Veteran was provided with a November 2013 VA examination of the back that included a neurological examination. Second, a reasonable person would have been able to infer from the January 2014 decision that right lower extremity radiculopathy, or similar right leg symptoms, had not been granted service connection. The decision addresses that the back examinations showed left lower extremity radiculopathy. The decision also addresses the rating assigned to the left lower extremity radiculopathy, which had not been formally claimed in the November 2013 claim. So, it was clear that the rating decision addressed additional issues than were listed on the formal claim form. Finally, the last pages of the Rating Decision Code Sheet list specific issues that were not service connected, and the list includes numbness of the right leg and right lower extremity radiculopathy. The Board notes the Veteran may not have understood why he was not being service connected for radiculopathy of the right lower extremity, but he was put on notice that the right leg had not been granted service connection. Ingram, 21 Vet. App. at 248. The third Cogburn factor, the timing of the claims, also supports an implicit denial, as the informal claim was received as part of the formal claim. The timing of the claims is "highly significant" to the analysis. Cogburn, 24 Vet. App. at 33. Where more than one claim is filed at the same time, and the AOJ's decision acts on one of the claims but fails to specifically address the other, then the second claim is deemed denied and the appeal period begins to run. Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006). Here, the claims were received and the back was examined along with a neurological examination. A rating for the back was granted along with a rating for the left lower extremity, which had been an informal claim along with the right lower extremity. The AOJ found entitlement to an increase on the left, and so it was specifically addressed; the AOJ did not find entitlement to a separate rating for the right, and so did not award anything or address it. The fourth Cogburn factor, whether the Veteran was represented, also falls in favor of an implicit denial. Where a veteran is unrepresented, VA has a duty to sympathetically read all pleadings. While this duty also applies to represented veterans, it may be heightened for unrepresented veterans. Cogburn, 24 Vet. App. at 217. A review of the record shows that at the time of the January 2014 rating decision, the Veteran was represented by his current representative, who is familiar with the manner in which disabilities are service connected and the rules regarding appeals. In any event, the Board has afforded the Veteran a sympathetic reading of his claim, and has found that an informal claim for the right leg was raised with the November 2013 claim. Accordingly, based on the above discussion, the Board finds that the informal claim for service connection for right lower extremity radiculopathy was implicitly denied in the January 2014 rating decision. The Veteran did not appeal for service connection for right lower extremity radiculopathy following that decision. Accordingly, the November 2013 informal claim was addressed and is no longer pending. The Board notes that the Veteran did appeal some of the decisions of the January 2014 rating decision, including the rating assigned to the back. Therefore, even though the Veteran did not appeal the implicit denial of service connection for right leg radiculopathy, its potential to be service connected secondary to the back remained pending as long as the claim for an increased rating for the back remained pending. During a June 2014 DRO (decision review officer) hearing, the Veteran's representative indicated that he was pursuing a permanent and total evaluation, specifically through appeals pertaining to TDIU and service-connected acquired psychiatric disabilities. She indicated that all other pending issues would be withdrawn if the Veteran was granted a permanent and total rating. Thereafter, in an August 2016 rating decision, a permanent and total rating was granted. Subsequently, the Board, in an April 2017 decision, dismissed the Veteran's remaining claims, including the claim for a higher rating for the back, which included the potential for a separate rating to be assigned for right leg radiculopathy. The Veteran did not appeal that decision and it is now final. There are no claims for service connection for right leg radiculopathy after the April 2017 Board decision dismissing the increased rating claim for the back. Rather, on December 5, 2018, the Veteran was sent a notification letter that his back would be subject to reexamination, which occurred in January 2019, and resulted in service connection being granted. The Board finds that the date of the notification letter should be the effective date of service connection, as that is what initiated the appeal and could be construed as the date of claim when making every effort to maximize his benefits and resolving doubt in his favor. An effective date earlier than that is not warranted. Even if construing the letter as a claim for an increased rating, it is not factually ascertainable that the increase in severity of the back resulting in right lower extremity radiculopathy occurred within the preceding year. 38 C.F.R. § 3.400(o). Rather, it is factually ascertainable that it occurred in April 2012, when right lower extremity radiculopathy was diagnosed. Harper v. Brown, 10 Vet. App. 125, 126 (1997). Accordingly, December 5, 2018, is the earliest available effective date for the Veteran's service-connected right lower extremity radiculopathy. The Board has considered the arguments that he has had these symptoms since his service. Indeed, the record shows he claimed service connection for this disability following his service. However, that claim was denied and he did not appeal it, and it cannot be revisited without an allegation of CUE, which has not been made here. The Board has considered the argument regarding an inadequate examination in December 2017, but is unable to locate such an examination. It appears she is referring to the November 2013 VA examination, which showed the Veteran reported symptoms of right leg radiculopathy, but which was not diagnosed or otherwise addressed. The opportunity to argue the inadequacy of that examination ended when the claim pertaining to the back was withdrawn. Accordingly, an effective date of December 5, 2018, but no earlier, is granted. REASONS FOR REMAND 1. The claim of entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy is remanded. 2. The claim of entitlement to SMC A&A is remanded. The record shows the Veteran receives or has received community care through VA with a non-VA treatment provider. The record shows that records from a non-VA chiropractor have been associated with his VA medical treatment records, and that they may be relevant to his radiculopathy rating, and to whether SMC A&A is warranted. Further, the Veteran reported that his radiculopathy symptoms had increased in frequency. He reported that his leg "goes out" and that it causes him to fall. The last VA examination for that was in January 2019, and did not specifically address radiculopathy (but rather was an examination of the back that included a neurological examination). Given the time that has passed and his report of symptoms, another examination is warranted to ensure the record is complete. Finally, the Veteran was provided a VA examination for his SMC claim in June 2017. Given the time that has passed and his report of an increase in symptoms, the Board finds that an updated examination for that claim is also warranted. The matters are REMANDED for the following action: 1. Associate updated treatment records with the claims file. Ask the Veteran to authorize VA to obtain any private treatment records he would like reviewed, or to provide them himself. Associate any records of private chiropractic care that are in VA's possession with the claims file. See, for example, VA treatment records referring to scanned records, dated September 23, 2021, October 15, 2019, and October 22, 2021. 2. After completion of directive 1, schedule the Veteran for an appropriate examination for a report on the current severity of his right lower extremity radiculopathy. The examiner is asked to elicit from the Veteran a detailed report of his symptoms. He has reported that his leg "goes out" and that he has fallen. The examiner is asked to address whether this symptom, and any other reported symptom, is approximately as likely as not related to his radiculopathy. All opinions are to be supported with explanation. 3. After completion of directive 1, schedule the Veteran for an appropriate examination or examinations to aid in determining whether the Veteran is in need of aid and attendance. The examiner is asked to address whether there is: an inability to dress or undress, or to keep himself ordinarily clean and presentable; a frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; an inability to feed himself through loss of coordination of upper extremities or through extreme weakness; an inability to attend to the wants of nature; or, physical or mental incapacity, which requires care or assistance on a daily basis to protect him from hazards or dangers incident to his daily environment. All opinions are to be supported with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.