Case A26040348

Summary

The veteran, who served from August 1967 to May 1970, appeals the denial of an earlier effective date for service connection for lumbar spine degenerative arthritis and the remand of claims related to right lower extremity radiculopathy. The Board found that the veteran's first claim for lumbar spine disability was filed on March 1, 2007, and that no earlier claim, formal or informal, was submitted or reasonably raised by the evidence. While the veteran had complaints and diagnoses related to his lumbar spine in 1972, these were not pursued as a specific claim for service connection for a back disability, and prior Board decisions addressing other conditions did not adjudicate a lumbar spine claim. Therefore, the Board denied the claim for an earlier effective date for lumbar spine degenerative arthritis, adhering to the March 1, 2007 claim date. The Board remanded claims concerning right lower extremity radiculopathy, noting it is a neurological abnormality associated with the service-connected lumbar spine condition. The remand is for a VA examiner to provide an opinion on the onset of the radiculopathy, specifically whether it predated February 28, 2015, and to assess its severity from that date if applicable, addressing any pre-decisional duty to assist errors.

Rationale

No formal or informal claim for lumbar spine disability prior to March 1, 2007.; Evidence of lumbar spine symptoms in 1972 not considered a claim for service connection.; Governing law requires effective date to be no earlier than date of claim receipt.

Full Decision Text

Citation Nr: A26040348
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 251031-608208
DATE: April 29, 2026

ORDER

An effective date prior to March 1, 2007, for the award of service connection for lumbar spine degenerative arthritis is denied.

REMANDED

Entitlement to an effective date prior to February 28, 2015, for the award of service connection for right lower extremity radiculopathy is remanded.

Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded.

FINDING OF FACT

Prior to March 1, 2007, the Veteran did not submit a claim of entitlement to service connection for a lumbar spine disability, formal or informal, and such a claim was not reasonably raised by the evidence of record.

CONCLUSION OF LAW

The criteria for an effective date prior to March 1, 2007, for the award of service connection for lumbar spine degenerative arthritis have not been met.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1967 to May 1970.  The extensive adjudicative history associated with these claims need not be detailed here.  It is sufficient for present purposes to state that these matters come before the Board of Veterans' Appeals (Board) after the issuance of an October 2025 rating decision by a Department of Veterans of Affairs (VA) Regional Office (RO).  Later in October 2025, the Veteran submitted a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement), wherein he selected the Evidence Submission Reviewed by a Veterans law Judge docket.

Preliminary, in a September 2025 decision, the Board granted service connection for lumbar spine degenerative arthritis and right lower extremity radiculopathy.  In an October 2025 rating decision, the RO implemented the Board's grants of service connection and, in the first instance, assigned a 40 percent rating to the Veteran's lumbar spine degenerative arthritis, effective April 11, 2024, and assigned a 10 percent rating to the Veteran's right lower extremity radiculopathy, also effective April 11, 2024.  Given that the October 2025 rating decision was not purely ministerial, it is a decision subject to appeal.  See Encarnacion v. McDonough, 36 Vet. App. 31 (2023).  As mentioned above, the Veteran submitted a VA Form 10182 in October 2025, seeking an earlier effective date for the award of service connection for both his lumbar spine degenerative arthritis and right lower extremity radiculopathy, as well as an increased rating for his right lower extremity radiculopathy.

In January 2026, the RO issued a rating decision wherein it determined that clear and unmistakable errors were committed in the October 2025 rating decision.  Specifically, the RO determined that, contrary to the finding in the October 2025 rating decision, the Veteran had continuously pursued a lumbar spine degenerative arthritis claim since March 1, 2007.  Consequently, the RO assigned March 1, 2007, as the new effective date for the award of service connection for lumbar spine degenerative arthritis.  The RO also found that, contrary to the October 2025 rating decision, the Veteran submitted a service connection claim for right lower radiculopathy that was received by VA on February 28, 2015, and continually pursued that claim since then.  As such, the RO assigned February 28, 2015, as the effective date for the award of service connection for right lower extremity radiculopathy, and assigned there to a 10 percent rating on and after that date.

The Board has modified the Veteran's claims to reflect the holdings in the January 2026 rating decision.  As will be discussed in the remand portion of the decision below, the Board finds that pre-decisional duty to assist errors require remanding the Veteran's effective date and increased rating claims regarding right lower extremity radiculopathy.  38 C.F.R. § 20.802.  Herein, the Board will address the merits of the Veteran's claim of entitlement to an earlier effective date for the award of service connection for lumbar spine degenerative arthritis.

An effective date of March 1, 2007, has already been assigned to the award of service connection for the Veteran's lumbar spine degenerative arthritis
 Board has modified the Veteran's claims to reflect the holdings in the January 2026 rating decision.  As will be discussed in the remand portion of the decision below, the Board finds that pre-decisional duty to assist errors require remanding the Veteran's effective date and increased rating claims regarding right lower extremity radiculopathy.  38 C.F.R. § 20.802.  Herein, the Board will address the merits of the Veteran's claim of entitlement to an earlier effective date for the award of service connection for lumbar spine degenerative arthritis.

An effective date of March 1, 2007, has already been assigned to the award of service connection for the Veteran's lumbar spine degenerative arthritis; he is seeking an earlier effective date.

Generally, the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service.  Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).

The Board will first ascertain whether the evidence of record includes a claim, formal or informal, prior to March 1, 2007.

An informal claim is any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a).

VA is required to look at all communications from the appellant that may be interpreted as applications or claims, formal and informal, for benefits.  In particular, VA is required to identify and act on informal claims for benefits.  38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196 (1992).

All that is required is that a communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought.  Rodriguez v. West, 189 F.3d 1351 (1999).

Prior to March 1, 2007, the Board finds no formal claim of entitlement to service connection for a back or lumbar spine disability.  Prior to March 1, 2007, the Veteran submitted a variety of claims, including service connection, earlier effective dates, and increased ratings, for a variety of disabilities, but none regarding a back or lumbar disability.

As just mentioned, prior to March 1, 2007, the Veteran submitted a variety of claims regarding disabilities other than his back/lumbar spine.  In pursuing these claims, the Veteran submitted records and/or identified treatment providers from whom VA would attempt to obtain records.  Some of the medical records submitted or obtained by VA incidentally showed complaints of, treatment for, and/or diagnoses of lumbar spine disability.  

For example, in 1972, the Veteran identified Jerry D. McClane, D.C., as a treatment provider while pursuing an increased rating claim for his service-connected bilateral pes planus and claims of entitlement to service connection claims for ear and kidney disabilities.  The RO obtained from Dr. McClane a September 1, 1972 Certificate of Attending Physician, which showed subluxation of the Veteran's fifth lumbar vertebrae, among other findings, but made no reference to an assertion by the Veteran that such a disability was incurred in or due to his active service or was caused or aggravated by a service-connected disability.  See 38 C.F.R. §§ 3.303, 3.310.  A few weeks later, the RO requested the Veteran's service records.  The RO indicated that the "alleged disease[s] or injur[ies]" claimed by the Veteran that were the basis of this request were flat feet, kidney condition, and ear condition.  Again, there was no reference to or acknowledgement of a claim regarding the Veteran's low back or lumbar spine.

However, pursuant to these claims, in November 1972, the RO submitted a request for a VA examination for pes planus.  The RO indicated that the "other disabilities" for which the examination was being requested included "back pain," the nature of which was not described, but was listed along with "urinary (burning, etc.)," and "bleeding ears."

In January 1974, the Board remanded the
 that the "alleged disease[s] or injur[ies]" claimed by the Veteran that were the basis of this request were flat feet, kidney condition, and ear condition.  Again, there was no reference to or acknowledgement of a claim regarding the Veteran's low back or lumbar spine.

However, pursuant to these claims, in November 1972, the RO submitted a request for a VA examination for pes planus.  The RO indicated that the "other disabilities" for which the examination was being requested included "back pain," the nature of which was not described, but was listed along with "urinary (burning, etc.)," and "bleeding ears."

In January 1974, the Board remanded the Veteran's claims for additional development.  After the requested development occurred, the Veteran's appeal was remitted to the Board.  

In February 1975, the Board denied the Veteran's claims.  In so doing, the Board considered the Veteran's in-service reports of back and low flank pain in the context of a kidney disability (chronic cystitis).  The Board noted that there were no clinical findings of a musculoskeletal disability beyond muscle tenderness to the Veteran's right lower lumbar area; a straight leg raise test was negative.

In July 1975, the Board granted an effective date of May 29, 1970, for the award of service connection for the Veteran's bilateral flat feet.

Despite receiving notice of these two Board decisions, the Veteran did not perfect an appeal.  As such, the February and July 1975 decisions are final.  Significantly, the Veteran did not protest the lack of consideration or adjudication of a service connection claim for back/lumbar spine disability.  

In March 1979, the Veteran submitted informally a claim of entitlement to an increased rating for his bilateral pes planus.  Ultimately, the Veteran perfected an appeal of the RO's decisions regarding his bilateral pes planus to the Board.  The Veteran made no reference to his back or lumbar spine.  In March 1980, the Board denied a rating in excess of 10 percent.  After receiving notice of this decision, the Veteran submitted a May 1980 letter expressing disagreement with the Board decision.  In an April 1980 letter, VA asked the Veteran if he intended this submission to be a request for reconsideration of the May 1980 decision or a new increased rating claim.  In a July 1980 response, the Veteran chose the latter.  As such the March 1980 Board decision is final.

Ultimately, the Veteran perfected an appeal to the Board regarding his May 1980 claim.  In an April 1982 decision, the Board denied the Veteran's claim, continuing and confirming the already assigned 10 percent rating.  Throughout the pendency of this appeal, the Veteran did not reference a back or lumbar spine disability.

The Veteran submitted subsequent claims that were eventually appealed to and adjudicated by the Board in March 1985 (denial), September 1992 (remand), September 2000 (denial of a motion for reconsideration of the March 1985 Board decision), October 2000 (grant to 50 percent for pes planus, among other decisions), and an April 2001 (denial of motion for reconsideration of October 2000 decision as to some of the issues).

Notably, in October 1998, the Veteran submitted a copy of a letter that was sent to a Congressman about his claims.  The Veteran provided a detailed account of the adjudicative history regarding his claims, including those that were still pending before VA in his estimation.  The Veteran made no reference to a formal or informal service connection claim for a back or lumbar disability, not even to question why VA had not developed or considered one to date.

After the April 2001 denial of the motion for reconsideration until the March 1, 2007 service connection claim for back/lumbar spine disability, the Veteran's claims, submissions, correspondence, and adjudications involved the waiver of indebtedness and the removal/additional family and/or spouses from his benefits and the effective dates thereof.  See October 2006 Statement of the Case.  During this period, the Veteran did not reference a pending service connection claim, formal or informal, for a back or lumbar spine disability.

On March 1, 2007, VA date-stamped as received the Veteran's informal claim of entitlement to service connection for a "back disorder."  Therein, the Veteran stated that, "[w]hile many of these problems were manifested before[,] they have now worsened to a point of being chronic in terms of the severity and permanence of the current condition."

Based on a comprehensive review of the evidence of record, including the Veteran's past claims, assertions,
 family and/or spouses from his benefits and the effective dates thereof.  See October 2006 Statement of the Case.  During this period, the Veteran did not reference a pending service connection claim, formal or informal, for a back or lumbar spine disability.

On March 1, 2007, VA date-stamped as received the Veteran's informal claim of entitlement to service connection for a "back disorder."  Therein, the Veteran stated that, "[w]hile many of these problems were manifested before[,] they have now worsened to a point of being chronic in terms of the severity and permanence of the current condition."

Based on a comprehensive review of the evidence of record, including the Veteran's past claims, assertions, appeals, and statements, the Board finds that the first service connection claim, formal or informal, submitted by the Veteran for back or lumbar spine disability is dated March 1, 2007.  Prior to that date, the Veteran made no assertion that a back or lumbar spine disability was incurred in or due to his active service, was caused or aggravated by a service-connected disability, or was an aspect of a service-connected disability was not contemplated by the applicable rating criteria.  He did not indicate to VA in any manner that he sought disability compensation for a back/lumbar spine disability prior to March 1, 2007.  Moreover, the Board finds that the evidence of record did not reasonably raise such a claim.  In fact, the Veteran's current assertions are belied by his March 1, 2007 claim.  That is, in the March 1, 2007 claim, the Veteran acknowledged that his back/lumbar disability existed before his March 1, 2007 submission, but only decided to submit a claim on that date because it had become more severe.  The implication is clear:  the Veteran recognized that he had not submitted a claim for a back/lumbar spine disability prior to March 1, 2007.  Consequently, the Board finds that the date of the Veteran's claim is March 1, 2007.

Even if the evidence/complaints of symptoms in 1972 pertained to a disability for which the Veteran sought service connection, the Board addressed the associated claim in the February 1975 decision.  To date, the finality of the February 1975 Board decision has not been vitiated, and the Board finds no subsequent, unadjudicated claim of record until the March 1, 2007 submission, as discussed above.

With respect to the date entitlement to service connection to a back/lumbar spine arose, even if the Board assumes that it arose at some point prior to March 1, 2007, the governing law requires the Board to assign the later date, i.e., the date of claim.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).

Indeed, the Board does not dispute that the Veteran is shown to have had lumbar spine symptomology prior to March 1, 2007.  As discussed above, a back disability was diagnosed as subluxation of his fifth vertebrae in September 1972.  However, the applicable law and regulations mandate that the effective date for the payment of compensation can be no earlier than the date of receipt of a claim for that disability.  38 U.S.C.A. § 5110(a).

To the extent that the Veteran contends that his effective date should be sometime in September 1992, a specific claim of service connection for a back/lumbar spine disability is not shown to have been received during that month, or at any time prior to March 1, 2007, formal or informal.

The presence of 1972 clinical findings and/or complaints of lumbar spine symptoms cannot be viewed as a formal or informal claim for the purpose of assigning an earlier effective date.  Earliest assignable effective date for the award of service connection for the Veteran's lumbar spine degenerative arthritis is March 1, 2007.   Thus, the Board finds that the criteria for an earlier effective date have not been met.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).

REASONS FOR REMAND

In the October 2025 rating decision, the RO assigned an effective of February 28, 2015, for the award of service connection for the Veteran's right lower extremity radiculopathy.  This determination was predicated on finding that the Veteran first submitted a service connection claim for right lower extremity radiculopathy on that date.

However, the Veteran's right lower extremity radiculopathy is a neurological abnormality associated with the service-connected lum
 the Board finds that the criteria for an earlier effective date have not been met.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).

REASONS FOR REMAND

In the October 2025 rating decision, the RO assigned an effective of February 28, 2015, for the award of service connection for the Veteran's right lower extremity radiculopathy.  This determination was predicated on finding that the Veteran first submitted a service connection claim for right lower extremity radiculopathy on that date.

However, the Veteran's right lower extremity radiculopathy is a neurological abnormality associated with the service-connected lumbar spine degenerative arthritis.  As such, the determination as to whether a separate rating is warranted for right lower extremity radiculopathy is for application throughout the appeal period for the Veteran's lumbar spine degenerative arthritis.  In the October 2025 rating decision, and confirmed herein, the RO determined that March 1, 2007, is the effective date for the award of service connection for the Veteran's lumbar spine degenerative arthritis.  Consequently, the determination as to the effective date for the award of a separate rating for right lower extremity radiculopathy (alternatively considered service connection), is for application on and after March 1, 2007, not limited by the submission of a February 28, 2015 claim.

The RO's failure to obtain an opinion from a VA examiner as to the date the Veteran's right lower extremity radiculopathy onset constitutes a pre-decisional duty to assist error and, thus, a remand is required.  38 C.F.R. § 20.802.

The issue of entitlement to an increased rating for right lower extremity radiculopathy is inextricably intertwined with the effective date claim and, thus, a remand for contemporaneous consideration is warranted.

The matters are REMANDED for the following action:

Obtain an opinion from a VA examiner regarding the onset of the Veteran's right lower extremity radiculopathy.  All pertinent evidence of record should be made available to and reviewed by the examiner.  The examiner is asked to determine, to the extent possible, when the Veteran first began experiencing right lower extremity radiculopathy, with an emphasis on whether it onset prior to February 28, 2015.

If the Veteran's right lower extremity radiculopathy onset at some point prior to February 28, 2015, assess the severity of that disability from the date of onset to February 28, 2015.

If an opinion cannot be provided without resorting to speculation, the examiner must explain whether this need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training).  

All opinions rendered must include a thorough rationale.

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sean Pflugner

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.