Citation Nr: 25008131 Decision Date: 06/18/25 Archive Date: 06/18/25 DOCKET NO. 11-19 371 DATE: June 18, 2025 ORDER Entitlement to an effective date prior to August 28, 2001, for service connection for radiculopathy of the right lower extremity is denied. REMANDED Entitlement to an effective date prior to April 13, 2004, for service connection for radiculopathy of the left lower extremity is remanded. FINDING OF FACT The date of the claim for service connection for right lower extremity radiculopathy is August 28, 2001, the date of the claim for the lumbar spine of which right lower extremity radiculopathy was part and parcel. CONCLUSION OF LAW The criteria for an effective date prior to August 28, 2001, for radiculopathy of the right lower extremity are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. INTRODUCTION The Veteran served on active duty from January 1989 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) regional office (RO). The Board has previously remanded the matter in December 2022, May 2023, and May 2024. In October 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge, and a transcript of that hearing is of record. While the matter was most recently on remand, a February 2025 rating decision granted earlier effective dates for both claims. As noted in the prior remand, the Veteran's claims for earlier effective dates for radiculopathy originate in his August 28, 2001, claim for service connection for the lumbar spine. The February 2025 rating decision granted earlier effective dates of August 28, 2001, for the right lower extremity, and April 13, 2004, for the left lower extremity, both of which the AOJ characterized as "a full grant of the benefits sought on appeal." The grant for the left lower extremity is not full relief because the Veteran seeks an earlier effective date of August 28, 2001, so this issue remains on appeal to the Board. The grant for the right lower extremity must also be addressed in this appeal. Notwithstanding the RO's statement, a Supplemental Statement of the Case was issued in March 2025 denying an effective date earlier than August 28, 2001, for the right lower extremity. See March 3, 2025, SSOC (using the previous styling of entitlement to an effective date "earlier than October 17, 2016" but clearly denying an effective date earlier than August 28, 2001, in the Reasons and Bases section). Moreover, the Veteran's representative submitted an Informal Hearing Presentation that included the effective date for the right lower extremity as an issue for which relief is sought. See May 9, 2025, IHP. Most of all, to even conclude that the grant constituted full relief requires making a finding of fact and conclusion of law, that is, requires adjudicating the merits of entitlement to an earlier effective date. The Board will therefore make that adjudication in this decision. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to an effective date prior to August 28, 2001, for service connection for radiculopathy of the right lower extremity is denied. An effective date earlier than August 28, 2001, for the right lower extremity must be denied. In this case, the Veteran filed an August 28, 2001, informal claim for service connection for his lower back. See August 28, 2001, Correspondence. After a lengthy appeals process, that claim was eventually granted in a November 2016 rating decision, and as part and parcel of the initial rating for that condition, service connection for bilateral lower extremity radiculopathy was granted. See November 29, 2016, Rating Decision; see 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1); see generally Wilson v. McDonough, 35 Vet. App. 103, 107 (2022) (citing Bailey v. Wilkie, 33 Vet. App. 188, 201 (2021)). By law, the effective date of an award based on a compensation claim "shall not be earlier than the date of receipt of application." 38 U.S.C. § 5110(a). Since the grant of service connection for radiculopathy is part and parcel of the underlying claim for the lumbar spine, the effective date of an award for radiculopathy can be no earlier than the date of the claim for the lumbar spine, August 28, 2001. For that reason, entitlement to an effective date prior to August 28, 2001, for service connection for radiculopathy of the right lower extremity must be denied. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(a). REASONS FOR REMAND 2. Entitlement to an effective date prior to April 13, 2004, for service connection for radiculopathy of the left lower extremity is denied. For the left lower extremity, though a new medical opinion was, as directed by the Board's prior remand, provided in January 2025, the new opinion is not fully adequate. The Board's prior remands have sought medical opinions addressing how early the radiculopathy manifested, with instructions to consider specific evidence. Among that evidence is the Veteran's lay testimony at the October 2021 Board hearing that he has had the same symptoms of radiculopathy, such as pain, numbness, tingling, and weakness in his legs, since August 2001 when he filed his low-back claim. And also for specific consideration were the Veteran's medical records, including an April 13, 2004, VA primary care note that saw the Veteran with pain and numbness "originating in low back down both legs," with an impression of sciatica. Earlier in the appeal, a June 2023 clinician opined that "[c]linically speaking, symptoms alone justify a diagnosis of radiculopathy in a setting of degenerative spine disease" (which is what the Veteran's service-connected lumbar spine disability is). See July 1, 2023, Medical Opinion. That clinician ultimately concluded, however, that an EMG in 2010 ruled out radiculopathy before 2010. Part of the reason for the Board's most recent May 2024 remand was for resolution of this discrepancy: if the Veteran's lay report of radiculopathy symptoms could "alone justify a diagnosis of radiculopathy," the clinician needed to explain why the EMG in 2010 nullified the Veteran's testimony of radiculopathy symptoms at least as early as August 2001. See May 14, 2024, Board Remand. A new VA opinion was provided in January 2025, but the clinician appears to have made the same error as the June 2023 clinician. She opined that the evidence supported that the Veteran had radiculopathy in the right leg as early as August 2001, and the only evidence in her discussion to support that date was the Veteran's lay testimony. But when it came to the left leg, she identified April 13, 2004, the date of the VA primary care note with an impression of sciatica, as the earliest date of left-leg radiculopathy. The Board finds, like it previously did for the June 2023 opinion, that the January 2025 opinion was discrepant and failed to explain it. The Veteran's lay statement was apparently sufficient to find an earlier date of radiculopathy for the right leg but not for the left. Remand is required to address this discrepancy and ensure that the Veteran is provided a fully adequate opinion. The matter is REMANDED for the following action: Obtain an opinion regarding the Veteran's radiculopathy of the left lower extremity from a clinician other than V.O., Nurse Practitioner (the author of the September 2024 and January 2025 opinions). It is left to the clinician's discretion whether a new examination is needed. The clinician must opine whether it is factually ascertainable that the Veteran's left lower extremity radiculopathy, which is secondary to his service connected lumbar DDD and DJD, had onset at any time prior to April 13, 2004. If so, the clinician should specify the earliest date on which it is factually ascertainable that the radiculopathy was present. In rendering the opinion, the clinician should consider all relevant evidence of record, to include (1) the Veteran's testimony that he has had the same symptoms of radiculopathy, such as pain, numbness, tingling, and weakness in his legs, since August 2001 when he filed a claim for his back; (2) an April 13, 2004 VA primary care note that saw the Veteran with pain and numbness "originating in low back down both legs," with an impression of sciatica; (3) a May 14, 2004 VA physical therapy note that found a positive straight leg raise test bilaterally; and, (4) a May 3, 2006 VA podiatry consult with a neurological examination that found altered proprioception and negative sensation, with an assessment of "chronic pain and neuropathy to bilateral feet." The clinician should also consider (i) a statement from Dr. T.D. in a July 2023 VA opinion that "[c]linically speaking, symptoms alone justify a diagnosis of radiculopathy in a setting of degenerative spine disease" (and the Veteran has service-connected degenerative spine disease); and, (ii) that the January 2025 VA opinion appeared to find that the Veteran's lower extremity radiculopathy in the right leg manifested at least as early in August 2001 based exclusively on the Veteran's own statements. The clinician must provide a rationale for any opinion rendered. Explain in detail the underlying reasoning for the opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.