Citation Nr: 23048294
Decision Date: 09/01/23	Archive Date: 09/01/23

DOCKET NO. 20-30 344
DATE: September 1, 2023

ORDER

Entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy for the period on appeal prior to severance on March 1, 2016, is denied.

FINDING OF FACT

During the pendency of the appeal, service connection for right lower extremity radiculopathy was severed, effective March 1, 2016..

CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for right lower extremity radiculopathy prior to severance effective March 1, 2016, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400 (o)(1).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from October 1967 to October 1971.

This matter is on appeal before the Board of Veterans' Appeals (Board) from a May 2011 rating decision.

The claim was most recently before the Board in January 2019 when it was remanded for issuance of a Statement of the Case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The Board finds there has been substantial compliance with the remand directives for the claim decided herein.? Stegall v. West, 11?Vet. App.?268 (1998).

1. Entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy for the period on appeal prior to severance effective March 1, 2016.

While this appeal was pending, in a December 2015 rating decision, the AOJ severed service connection for lumbar radiculopathy, right lower extremity, as secondary to low back syndrome with minimal degenerative changes, effective March 1, 2016. The Veteran did not perfect an appeal of the issue of the propriety of the severance of service connection.

Under 38 C.F.R. § 3.400 (o)(1), a retroactive increase or other additional benefit cannot be awarded after service connection has been severed. Accordingly, a higher rating for right lower extremity radiculopathy is precluded, and the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 

 

 

T. RAYMOND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Robert J. Burriesci, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.