Case A26040769

COLLEEN M. GLASER-ALLEN · 2026 · Case ID: A26040769

MIXED

Summary

The veteran, who served in the United States Army from April 1971 to April 1972 and November 1972 to August 1986, appeals the denial of earlier effective dates for service connection for bilateral radiculopathy (sciatica) and the denial of service connection for bilateral knee disorders. The Board granted an earlier effective date of August 15, 2019, for the service connection of bilateral radiculopathy, finding the veteran continuously pursued the claim since his August 15, 2019, intent to file, which noted symptoms of numbness and tingling in his lower extremities. The Board found the January 2025 rating decision, which granted service connection for the radiculopathy effective August 21, 2024, did not provide the requested earlier effective date. The Board remanded the claims for bilateral knee disorders, finding the prior VA medical opinion inadequate. The clinician failed to adequately address the etiology of the knee conditions in relation to the veteran's assertions of carrying heavy ruck sacks and did not properly consider the applicable legal standard. The Board noted that while the veteran's lay statements were credible, they lacked sufficient corroboration from objective medical evidence to establish service connection for the knee conditions. The case was remanded for new medical opinions on the nature and etiology of the right and left knee disorders, specifically addressing the in-service complaints and the physical toll of ruck sacks, and applying the correct legal standard.

Rationale

Veteran filed intent to file on August 15, 2019, noting lower extremity symptoms.; Veteran filed a fully developed claim in April 2020 requesting service connection for radiculopathy.; Continuous pursuit of the claim established entitlement to the earlier effective date.

Service Branch

ARMY

Special Benefit

EARLIER EFFECTIVE DATE

Docket No.

250414-534296

Full Decision Text

Citation Nr: A26040769
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250414-534296
DATE: April 30, 2026

ORDER

Entitlement to an earlier effective date of August 15, 2019, for the award of service connection for radiculopathy left lower extremity, sciatica, is granted.

Entitlement to an earlier effective date of August 15, 2019, for the award of service connection for radiculopathy, right lower extremity, sciatica, is granted.

REMANDED

Entitlement to service connection for right knee disorder is remanded.

Entitlement to service connection for left knee disorder is remanded.

FINDINGS OF FACT

1. On August 15, 2019, the Veteran filed an intent to file a claim form.

2. In April 2020, the Veteran filed a fully developed claim form requesting service connection for a back condition and radiculopathy.

3. A March 2021 rating decision, in part, denied service connection for a back condition and radiculopathy of the right lower extremity and radiculopathy of the left lower extremity.

4. In March 2021, the Veteran filed a VA Form 10182, appealing the issues of service condition for a back condition, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity.

5. In July 2024, the Board remanded, in part, the claims for service connection for a back condition, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity.

6. A January 2025 rating decision granted service connection for a back condition effective August 15, 2019; granted service connection for radiculopathy of the left lower extremity, assigning a 10 percent rating effective August 21, 2024; and granted service connection for radiculopathy of the right lower extremity, assigning a 10 percent rating effective August 21, 2024.

7. In January 2025, the Veteran requested higher-level review of the January 2025 rating decision, requesting an earlier effective date of August 15, 2019, for the awards of service connection for radiculopathy of the left lower extremity and radiculopathy of the right lower extremity.

8. An April 2025 higher-level review rating decision continued the effective dates assigned to radiculopathy of the left lower extremity and radiculopathy of the right lower extremity.

9. In April 2025, the Veteran filed a VA Form 10182, requesting earlier effective dates for radiculopathy of the left lower extremity and radiculopathy of the right lower extremity.

CONCLUSIONS OF LAW

1. The criteria for an earlier effective date of August 15, 2019, for the award of service connection for radiculopathy left lower extremity, sciatica, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

2. The criteria for an earlier effective date of August 15, 2019, for the award of service connection for radiculopathy, right lower extremity, sciatica, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably on active duty in United States Army from April 1971 to April 1972; and November 1972 to August 1986. His awards and decorations include an Army Achievement Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Republic of Vietnam Cross of Gallantry with Palm, among others.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2025 rating decision of an agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA) that, in part, denied earlier effective dates for the awards of service connection for radiculopathy, left lower extremity, sciatica, and radiculopathy, right lower extremity, sciatica; and denied service connection for right knee disorder and left knee disorder.

In the April 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. However, he indicated that he disagreed with the January 2025 rating decision. However, the January 2025 rating decision concerning the assignment of effective dates for radiculopathy of left lower extremity and radiculopathy of right lower extremity, was subject to higher-level review, and the January 2025 rating decision deferred the issues of service connection for left knee and right knee disorders for adjudication.

Accordingly, in affording the Veteran the benefit of the doubt, the Board finds the Veteran intended the rating decision on appeal as the April 2025 rating decision. As such, the Board may only consider the evidence of record at the time of the January 2025 decision as to the earlier effective date claims, which was subsequently subject to higher-level review, and the March 2025 decision concerning the claims for service connection for left knee and right knee disabilities. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Cook v. McDonough, 36 Vet. App. 175 (2023).

On the April 2025 VA Form 10182, the Veteran listed the issues of service connection for a right knee disorder and left knee disorder. Though he noted the incorrect rating decision, given that the NOD is timely with the April 2025 rating decision that adjudicated the issues of service connection for left and right knee disorders, the Board finds that the matters are properly on appeal.

Effective Date Legal Criteria

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a).

To preserve an earlier effective date, notice of a claimant's intent to file a claim may be submitted to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate benefits application form prescribed by the Secretary. If VA receives a complete application form within one-year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received.

Continuous pursuit of a claim or an issue can be achieved by timely and properly filing an appropriate review option, generally within one year of a VA decision. 38 C.F.R. § 3.2500(c). If a claim for benefits is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. §§ 3.400, 3.2500(c). The available review options to establish continuous pursuit depend on the type of decision that was issued. If the decision is an initial or supplemental claim, a claimant may submit a (i) supplemental claim, (ii) higher-level review,
or an issue can be achieved by timely and properly filing an appropriate review option, generally within one year of a VA decision. 38 C.F.R. § 3.2500(c). If a claim for benefits is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. §§ 3.400, 3.2500(c). The available review options to establish continuous pursuit depend on the type of decision that was issued. If the decision is an initial or supplemental claim, a claimant may submit a (i) supplemental claim, (ii) higher-level review, or (iii) Board Appeal to continuously pursue the appeal. If the decision is an AOJ decision on a higher-level review request, claimants may submit a (i) supplemental claim or (ii) Board Appeal to continuously pursue the appeal.

1. Entitlement to an earlier effective date of August 15, 2019, for the award of service connection for radiculopathy, left lower extremity, sciatica, is granted.

2. Entitlement to an earlier effective date of August 15, 2019, for the award of service connection for radiculopathy, right lower extremity, sciatica, is granted.

The Veteran contends that he is entitled to an earlier effective date of August 15, 2019, for the awards of service connection for radiculopathy, left lower extremity, sciatica, and radiculopathy, right lower extremity, sciatica. The Board agrees.

On August 15, 2019, the Veteran filed an intent to file a claim form.

In April 2020, the Veteran filed a fully developed claim form, in part, requesting service connection for a back condition and radiculopathy.

A March 2021 rating decision, in part, denied service connection for a back condition and radiculopathy of the right lower extremity and radiculopathy of the left lower extremity.

In March 2021, the Veteran filed a VA Form 10182, appealing the issues of service condition for a back condition, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity.

In July 2024, the Board remanded, in part, the claims for service connection for a back condition, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity.

A January 2025 rating decision granted service connection for a back condition effective August 15, 2019; granted service connection for radiculopathy of the left lower extremity, assigning a 10 percent rating effective August 21, 2024; and granted service connection for radiculopathy of the right lower extremity, assigning a 10 percent rating effective August 21, 2024.

In January 2025, the Veteran requested higher-level review of the January 2025 rating decision, requesting an earlier effective date of August 15, 2019, for the awards of service connection for radiculopathy of the left lower extremity and radiculopathy of the right lower extremity.

An April 2025 higher-level review rating decision continued the effective dates assigned to radiculopathy of the left lower extremity and radiculopathy of the right lower extremity.

In April 2025, the Veteran filed a VA Form 10182, requesting earlier effective dates for radiculopathy of the left lower extremity and radiculopathy of the right lower extremity.

Here, the Board finds that an earlier effective date of August 15, 2019, for the award of service connection for radiculopathy of the left lower extremity and radiculopathy of the right lower extremity is warranted. The Veteran has continuously prosecuted this claim since the August 15, 2019 intent to file a claim form. At that time, the Veteran reported experienced numbness and tingling in his lower extremities. Therefore, an earlier effective date of August 5, 2019, for the award of service connection for radiculopathy of the left lower extremity, and an earlier effective date of August 5, 2019, for the award of service connection for radiculopathy of the right lower extremity, is granted.

REASONS FOR REMAND

1. Entitlement to service connection for right knee disorder is remanded.

2. Entitlement to service connection for left knee disorder is remanded.

The Veteran contends that his right knee and left knee disorders are related to active service. Specifically, he asserts that disabilities were caused by the physical
reported experienced numbness and tingling in his lower extremities. Therefore, an earlier effective date of August 5, 2019, for the award of service connection for radiculopathy of the left lower extremity, and an earlier effective date of August 5, 2019, for the award of service connection for radiculopathy of the right lower extremity, is granted.

REASONS FOR REMAND

1. Entitlement to service connection for right knee disorder is remanded.

2. Entitlement to service connection for left knee disorder is remanded.

The Veteran contends that his right knee and left knee disorders are related to active service. Specifically, he asserts that disabilities were caused by the physical toll of carrying heavy ruck sacks for miles.

In December 2024, a VA clinician provided an addendum opinion concerning the etiology of the right and left knee disabilities. The clinician stated that lay statements can serve as important supplemental evidence, particularly when they align with the known etiology and pathophysiology of the claimed conditions. The absence of contemporaneous medical documentation in the service treatment records does not, in and of itself, negate the Veteran's account, as there were many reasons why medical records may not fully reflect an individual's symptomatology, including self-management, prioritization of duty over medical care, and gaps in healthcare access.

However, despite consideration of these factors, the clinician found that the medical evidence did not support a direct nexus between the Veteran's current diagnoses and his military service.

While chronicity of care is not required for service connection under 38 C.F.R. 3.303(b), continuity of symptomatology is an essential factor in determining a link to service.

In this case, the available records did not establish an ongoing pattern of symptoms or treatment indicative of a chronic condition beginning in service and persisting thereafter. Medical literature supported that degenerative joint conditions, neuropathies, and spinal disabilities can develop due to various factors, including age-related degeneration, genetic predisposition, biomechanical stressors, and post-service occupational or lifestyle influences.

The Veteran's lay statements, while credible in reporting his experience, do not provide sufficient medical evidence to establish causation without corroborative findings such as objective diagnostic imaging, persistent clinical evaluation, or medical literature supporting a clear mechanism linking his condition to the described in-service activities. Additionally, although the Veteran previously underwent a trial of physical therapy, there was no current, consistent treatment history that would suggest an ongoing disabling condition attributable to military service. Without objective medical evidence linking the current disabilities to service, the preponderance of evidence does not support service connection.

Unfortunately, the Board finds the December 2024 opinion inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The clinician did not adequately address whether the Veteran's right and left knee disorders are related to the physical toll of carrying heavy ruck sacks for miles. In addition, a January 1984 service treatment record indicated that the Veteran reported a right knee ache that was not discussed by the clinician. Moreover, the clinician applied the incorrect (and more stringent) legal standard of "preponderance of evidence" in considering the Veteran's claim, rather than the applicable "approximate balance" standard. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

For these reasons, the Board finds the medical opinion is inadequate for adjudication purposes. Because the AOJ did not obtain an adequate medical opinion, a pre-decisional duty to assist error has been made. 38 C.F.R. § 20.802(a). Accordingly, remand is required for a new opinion.

Finally, the Board recognizes that an opinion was not obtained concerning any relationship between the Veteran's left and right knee disabilities and his conceded exposure to herbicide agents. However, such is not required.

On August 10, 2022, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) was enacted. Under the PACT Act, Section 303 requires a disability examination and medical opinion be requested for certain non-presumptive conditions involving toxic exposure risk activity (TERA). For such claims, VA is required to provide a medical opinion when the Veteran submits a claim for compensation, has evidence of a disability or has evidence of participation in a TERA, and such evidence is not sufficient to establish service connection for the disability. 38 U.S.C. § 1168(a). However, a TERA opinion is not required for disabilities resulting from physical trauma. Remand is therefore not required under the facts of this case.

The matters are REMANDED for
of 2022 (PACT Act) was enacted. Under the PACT Act, Section 303 requires a disability examination and medical opinion be requested for certain non-presumptive conditions involving toxic exposure risk activity (TERA). For such claims, VA is required to provide a medical opinion when the Veteran submits a claim for compensation, has evidence of a disability or has evidence of participation in a TERA, and such evidence is not sufficient to establish service connection for the disability. 38 U.S.C. § 1168(a). However, a TERA opinion is not required for disabilities resulting from physical trauma. Remand is therefore not required under the facts of this case.

The matters are REMANDED for the following action:

1. Please obtain an addendum opinion as to the nature and etiology of the Veteran's right knee disorder. The Veteran's claims folder and a complete copy of this Remand must be made available to the clinician. The clinician is requested to provide an opinion responsive to the following:

a. Is it at least as likely as not that the Veteran's right knee disorder was incurred in or caused by active service?

A complete rationale must be provided for all opinions or conclusions expressed. The clinician must address the January 1984 service treatment record noting a right knee ache and the Veteran's statements relating his knee disorder to the physical toll experienced by carrying heavy ruck sacks for miles during service. If the clinician is unable to provide an opinion without resorting to speculation, he or she must explain why this is so.

Consistent with Lynch v. McDonough, 21 F.4th 776, 781-82 (2021), the clinician is advised that the term "at least as likely as not" means that the likelihood is at least approximately balanced or nearly equal, if not higher.

2. Please obtain an addendum opinion as to the nature and etiology of the Veteran's left knee disorder. The Veteran's claims folder and a complete copy of this Remand must be made available to the clinician. The clinician is requested to provide an opinion responsive to the following:

a. Is it at least as likely as not that the Veteran's left knee disorder was incurred in or caused by active service?

A complete rationale must be provided for all opinions or conclusions expressed. The clinician must address the Veteran's statements relating his knee disorder to the physical toll experienced by carrying heavy ruck sacks for miles during service. If the clinician is unable to provide an opinion without resorting to speculation, he or she must explain why this is so.

Colleen M. Glaser-Allen

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Seay, Jessica M.

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.

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