Citation Nr: 25005681 Decision Date: 04/25/25 Archive Date: 04/25/25 DOCKET NO. 12-05 659 DATE: April 25, 2025 ORDER Entitlement to an earlier effective date of July 21, 1997, but not earlier, for the award of service connection for right upper extremity peripheral neuropathy is granted. Entitlement to an earlier effective date of July 21, 1997, but not earlier, for the award of service connection for left upper extremity peripheral neuropathy is granted. Entitlement to an earlier effective date of July 21, 1997, but not earlier, for the award of service connection for right lower extremity peripheral neuropathy with sciatic nerve impairment is granted. Entitlement to an earlier effective date of July 21, 1997, but not earlier, for the award of service connection for left lower extremity peripheral neuropathy with sciatic nerve impairment is granted. REMANDED Entitlement to an initial compensable rating, prior to August 11, 2003, for right upper extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent, from August 11, 2003, to April 18, 2021, for right upper extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 40 percent, from April 19, 2021, to June 19, 2024, for right upper extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 50 percent, effective June 20, 2024, for right upper extremity peripheral neuropathy is remanded. Entitlement to an initial compensable rating, prior to August 11, 2003, for left upper extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent, from August 11, 2003, to April 18, 2021, for left upper extremity peripheral neuropathy is remanded. Entitlement to rating in excess of 30 percent, from April 19, 2021, to June 19, 2024, for left upper extremity peripheral neuropathy is remanded. Entitlement to rating in excess of 40 percent, effective from June 20, 2024, for left upper extremity peripheral neuropathy (non-dominant) is remanded. Entitlement to an initial compensable rating, prior to August 11, 2003, for right lower extremity neuropathy is remanded. Entitlement to a rating in excess of 20 percent, from August 11, 2003, to June 19, 2024, for right lower extremity peripheral neuropathy with sciatic nerve impairment is remanded. Entitlement to a rating in excess of 60 percent, effective from June 20, 2024, for right lower extremity peripheral neuropathy with sciatic nerve impairment is remanded. Entitlement to an initial compensable rating, prior to August 11, 2003, for left lower extremity neuropathy is remanded. Entitlement to a rating in excess of 20 percent, from August 11, 2003, to June 19, 2024, for left lower extremity peripheral neuropathy with sciatic nerve impairment is remanded. Entitlement to a rating in excess of 60 percent, effective from June 20, 2024, for left lower extremity peripheral neuropathy with sciatic nerve impairment is remanded. FINDINGS OF FACT 1. On June 2, 1997, VA received an informal claim for entitlement to service connection for peripheral neuropathy. 2. In September 1997, the Regional Office issued a rating decision that denied entitlement to service connection for peripheral neuropathy due to Agent Orange exposure. 3. In October 1997, the Veteran submitted correspondence that constituted a notice of disagreement. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date of July 21, 1997, but not earlier, for the award of service connection for right upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302. 2. The criteria for entitlement to an earlier effective date of July 21, 1997, but not earlier, for the award of service connection for left upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302. 3. The criteria for entitlement to an earlier effective date of July 21, 1997, but not earlier, for the award of service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302. 4. The criteria for entitlement to an earlier effective date of July 21, 1997, but not earlier, for the award of service connection for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to June 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA). In October 2014, the case came before the Board. The Board remanded the Veteran's claims for further development. In October 2019, the Board granted 10 percent ratings for his bilateral upper extremity neuropathy. In addition, the Board granted 20 percent ratings for his bilateral lower extremity neuropathy. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In October 2020, the Court issued an Order that granted a Joint Motion for Partial Remand (JMPR) filed by counsel for the Veteran and VA, vacating that portion of the Board's decision that denied initial disability rating sin excess of 10 percent each for left and right upper extremity neuropathy and initial disability ratings in excess of 20 percent each for left and right lower extremity neuropathy, and remanded the matters to the Board for readjudication in compliance with the JMPR. The Court's Order did not disturb that portion of the Board's decision that granted initial disability ratings of 10 percent each for bilateral upper extremity neuropathy and initial disability ratings of 20 percent each for bilateral lower extremity neuropathy. In March 2021, the case returned to the Board. The Board remanded the Veteran's claims for further development in accordance with the terms of the JMPR. In a December 2021 rating decision, the Regional Office granted a higher 30 percent initial evaluation for right upper extremity peripheral neuropathy with median and musculocutaneous nerve impairment, effective April 19, 2021; and granted a higher 20 percent initial evaluation for left upper extremity peripheral neuropathy, effective April 19, 2021. In March 2022 the case came before the Board, the Board denied higher than 10 percent initial evaluations for right upper extremity and left upper extremity peripheral neuropathy prior to April 19, 2021. The Board granted a 40 percent initial evaluation for right upper extremity peripheral neuropathy from April 19, 2021, and granted a 30 percent initial evaluation for left upper extremity peripheral neuropathy from April 19, 2021. The Board also denied higher than 20 percent initial evaluations for right lower extremity and left lower extremity peripheral neuropathy. The Veteran thereafter appealed the March 2022 decision to the U.S. Court of Appeals for Veterans Claims (the Court). In a December 2022 Order of the Court, the Court granted a December 2022 Joint Motion for Partial Remand (JMPR), in which the parties agreed to vacate the March 2022 Board decision and remand the matters for readjudication consistent with the JMPR. In May 2023, the case returned to the Board. The Board dismissed claims for entitlement to earlier effective dates for the award of service connection for bilateral upper extremity neuropathy and bilateral lower extremity neuropathy. In addition, the Board remanded the Veteran's remaining claims in order to incorporate all of his outstanding treatment records so the Board could adequately address the Veteran's claims. In August 2024, the parties entered into a Joint Motion for Remand (JMR) regarding the dismissal of the Veteran's claims for entitlement to earlier effective dates for the award of service connection for his bilateral upper and lower extremity peripheral neuropathy. The parties agreed that the Board did not adequately address the merits of a July 1997 letter that could possibly rendered that decision non-final. In October 2024, the RO issued a rating decision that increased the Veteran's right upper extremity neuropathy to 50 percent disabling effective from June 20, 2024. In addition, the Veteran's left upper extremity neuropathy was increased to 40 percent disabling effective from June 20, 2024. Moreover, the Veteran's right lower extremity neuropathy was increased to 60 percent disabling effective from June 20, 2024. Lastly, the Veteran's left lower extremity neuropathy was increased to 60 percent disabling effective from June 20, 2024. Effective Date 1. Entitlement to an effective date than August 11, 2003, for the award of service connection for right upper extremity (RUE) peripheral neuropathy [dominant] 2. Entitlement to an effective date than August 11, 2003, for the award of service connection for left upper extremity (LUE) peripheral neuropathy [non-dominant] 3. Entitlement to an effective date than August 11, 2003, for the award of service connection for right lower extremity (RLE) peripheral neuropathy with sciatic nerve impairment 4. Entitlement to an effective date than August 11, 2003, for the award of service connection for left lower extremity (LLE) peripheral neuropathy with sciatic nerve impairment The Veteran contends that he should be awarded an earlier effective date for the award of service connection for his bilateral upper and lower extremity radiculopathy. In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. 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); 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(ii), (r). The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. With regard to the date of entitlement, the term "date entitlement arose" is not defined in the current statute or regulation. However, it is the date when the veteran met the requirements for the benefits sought, which is determined on a "facts found" basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. For instance, if a veteran filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). A liberal standard is applied in determining whether a communication constitutes a notice of disagreement. However, the communication in question must at least refer to the rating decision in question and be in terms that can be reasonably construed as expressing disagreement or dissatisfaction with the determination and a desire for appellate review. See 38 C.F.R. § 20.201; Stokes v. Derwinski, 1 Vet. App. 201, 203 (1991). A claimant or representative must file a notice of disagreement within one year from the date that the RO mailed notice of a decision. 38 C.F.R. § 20.302(a). If a notice of disagreement is not filed within the one-year time period, the decision becomes final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.302, 20.1103. An untimely notice of disagreement deprives the Board of jurisdiction to consider the merits of an appeal. 38 U.S.C. § 7105(c). Effective March 24, 2015, VA will only accept an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ) as a notice of disagreement if it is submitted on a standardized form (VA Form 21-0958, Notice of Disagreement) provided by VA for the purpose of appealing the decision, in cases where such a form is provided. See 38 C.F.R. § 20.201(a). As the Veteran's NOD at issue was submitted prior to March 2015, a standardized form was not required. A pending claim is not finalized until the VA makes the required § 3.156(b) determination. Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014). Such a determination does not require any "magic words," but there must be some indication that the VA determined whether the submission is new and material evidence and, if so, considered such evidence in evaluating the pending claim. Pickett v. McDonough, 64 F.4th 1342, 1347 (Fed. Cir. 2023). Moreover, it is unnecessary for VA to make an explicit finding that the newly received evidence is "new and material" within the meaning of § 3.156(b). Hampton v. McDonough, 68 F.4th 1376, 1380-81 (Fed. Cir. 2023). VA need only consider and address the merits of the new evidence in connection with the claim, thereby making an implicit finding that the evidence is new and material. Id. at 1381. Additionally, evidence is constructively received by the VA adjudicator post-decision if it (1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran's claim. There is no requirement that the VA adjudicator have any actual knowledge of the evidence for this principle to apply. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). On June 2, 1997, VA received an informal claim for entitlement to service connection for peripheral neuropathy. In September 1997, the Regional Office issued a rating decision that denied entitlement to service connection for peripheral neuropathy due to Agent Orange exposure. The notification letter that was attached to the rating decision stated that VA did not receive information that it needed to consider for the Veteran's claim for peripheral neuropathy. The notification letter also went on to state that the Veteran could submit medical evidence showing that his condition began in service. In October 1997, the Veteran submitted correspondence that specifically referenced the reply to information that was specified on the October 1997 notification letter. The Veteran also resubmitted the July 1997 letter that his private doctor wrote concerning the pain in his hands and that the Veteran was exposed to Agent Orange. On October 28, 2002, the Veteran filed to reopen his claim for entitlement to service connection for peripheral neuropathy. The Veteran was subsequently awarded service connection for bilateral upper and lower extremity radiculopathy effective from August 11, 2003. The Board notes that the most recent Joint Motion was based on the assertion that the July 1997 letter could possibly serve as new and material evidence that would negate the finality of the October 1997, even though the same letter was specifically considered in the September 1997 rating decision. However, notwithstanding the directives of the Joint Motion, the Board has more closely examined whether the October 1997 correspondence could constitute a notice of disagreement under the Legacy system. In this regard, considering the evidence in the light most favorable to the Veteran, the Board finds that the assignment of earlier effective dates for the award of service connection for the Veteran's bilateral upper and lower extremity neuropathy is warranted. After a review of the record, the Board finds that the Veteran's October 1997 packet of correspondence constituted a notice of disagreement to the September 1997 rating decision. In addition, the Board notes that the medical evidence of record established that the Veteran was experiencing neuropathy in his body prior to August 11, 2003. Therefore, based on the foregoing and after resolving all doubt in favor of the Veteran, the Board finds that earlier effective dates of June 2, 1997, but not earlier, are warranted for the establishment of service connection for the Veteran's bilateral upper and lower extremity neuropathy. REASONS FOR REMAND 1. Entitlement to an initial compensable rating, prior to August 11, 2003, for right upper extremity radiculopathy is remanded. 2. Entitlement to a rating in excess of 10 percent, from August 11, 2003, to April 18, 2021, for right upper extremity peripheral neuropathy is remanded. 3. Entitlement to a rating in excess of 40 percent, from April 19, 2021, to June 19, 2024, for right upper extremity peripheral neuropathy is remanded. 4. Entitlement to a rating in excess of 50 percent, effective June 20, 2024, for right upper extremity peripheral neuropathy is remanded. 5. Entitlement to an initial compensable rating, prior to August 11, 2003, for left upper extremity radiculopathy is remanded. 6. Entitlement to a rating in excess of 10 percent, from August 11, 2003, to April 18, 2021, for left upper extremity peripheral neuropathy is remanded. 7. Entitlement to rating in excess of 30 percent, from April 19, 2021, to June 19, 2024, for left upper extremity peripheral neuropathy is remanded. 8. Entitlement to rating in excess of 40 percent, effective from June 20, 2024, for left upper extremity peripheral neuropathy (non-dominant) is remanded. 9. Entitlement to an initial compensable rating, prior to August 11, 2003, for right lower extremity neuropathy is remanded. 10. Entitlement to a rating in excess of 20 percent, from August 11, 2003, to June 19, 2024, for right lower extremity peripheral neuropathy with sciatic nerve impairment is remanded. 11. Entitlement to a rating in excess of 60 percent, effective from June 20, 2024, for right lower extremity peripheral neuropathy with sciatic nerve impairment is remanded. 12. Entitlement to an initial compensable rating, prior to August 11, 2003, for left lower extremity neuropathy is remanded. 13. Entitlement to a rating in excess of 20 percent, from August 11, 2003, to June 19, 2024, for left lower extremity peripheral neuropathy with sciatic nerve impairment is remanded. 14. Entitlement to a rating in excess of 60 percent, effective from June 20, 2024, for left lower extremity peripheral neuropathy with sciatic nerve impairment is remanded. As explained above, the Board has found that the assignment of earlier effective dates for the Veteran's bilateral upper and lower extremity neuropathy was warranted. Accordingly, the Board finds that a remand is necessary for the Veteran to attend a VA examination that provides a retrospective opinion regarding the period of the appeal prior to August 2003 because the medical evidence of record for this period of the appeal is not sufficient for the Board to adequately address the totality of the Veteran's increased rating claims. In addition, the Board finds that the later stages of the Veteran's appeal are inextricably intertwined with the initial rating stages of the Veteran's bilateral upper and lower extremity disabilities because medical evidence from the Veteran's retrospective opinion may impact the later stages of his appeal. Therefore, a final decision on the issue of entitlement to increased ratings for the Veteran's bilateral upper and lower extremity neuropathy from August 2003 cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: Schedule the Veteran for a retrospective opinion regarding the severity of his bilateral upper and lower extremity neuropathy prior to August 11, 2003. The VA examiner's opinion must be based on a review of the Veteran's claims file, and an interview and examination of the Veteran. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.R. Montalvo, 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.