The appeal for the entitlement to a rating in excess of 40 percent for intractable sural nerve entrapment syndrome and chronic pain syndrome of the left lower extremity is dismissed.
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Citation Nr: 19133475 Decision Date: 04/30/19 Archive Date: 04/30/19 DOCKET NO. 14-19 745 DATE: April 30, 2019 ORDER The appeal for the entitlement to a rating in excess of 40 percent for intractable sural nerve entrapment syndrome and chronic pain syndrome of the left lower extremity is dismissed. An effective date of January 12, 2009, but no earlier, for the award of a 40 percent rating for intractable sural nerve entrapment syndrome and chronic pain syndrome of the left lower extremity is granted. An effective date prior to March 27, 2013, for the grant of service connection for headaches as secondary to service-connected Sunderland grade IV-V injury to branches of lingual and mandibular branches of the 5th cranial nerve (trigeminal) is denied. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran withdrew his claim for a higher rating for intractable sural nerve entrapment syndrome and chronic pain syndrome of the left lower extremity at the June 2018 Board hearing. 2. The November 2009 rating decision that assigned an effective date of March 1, 2004 for the 30 percent disability rating did not became final due to the receipt of new and material evidence within one year. 3. It is factually ascertainable that the disabilities of intractable sural nerve entrapment syndrome and chronic pain syndrome of the left lower extremity met the criteria for a 40 percent rating as of January 12, 2009. 4. There is no evidence of a formal or informal claim received by VA for service connection for headaches prior to March 27, 2013. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to a rating in excess of 40 percent for intractable sural nerve entrapment syndrome and chronic pain syndrome of the left lower extremity have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for an effective date of January 12, 2009, and no earlier, for the award of a 40 percent rating for intractable sural nerve entrapment syndrome and chronic pain syndrome of the left lower extremity have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date prior to March 27, 2013, for the grant of service connection for headaches have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1999 to February 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from ratingdecisions by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified before the undersigned Veterans Law Judge at a hearing. A copy of the transcript is associated with the Veteran’s claims file. Additional evidence was added to the file after the certification and transfer of the appeal to the Board. However, the Board notes that this evidence is not relevant to the claims on appeal and a waiver is not necessary. See 38 C.F.R. 20.1304. 1. Entitlement to a rating in excess of 40 percent for intractable sural nerve entrapment syndrome and chronic pain syndrome of the left lower extremity. During the June 2018 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to a rating in excess of 40 percent for intractable sural nerve entrapment syndrome and chronic pain syndrome of the left lower extremity. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to that issue. See Hearing Transcript at page 2. The Veteran’s full understanding of the consequences was demonstrated by noting on the record that a preliminary discussion about his intent to withdraw this issue was held prior to the videoconference hearing and the undersigned Veterans Law Judge clearly specified on the record which issues would remain on appeal. Thus, it was made clear that the claim for a rating in excess of 40 percent for intractable sural nerve entrapment syndrome and chronic pain syndrome of the left lower extremity would no longer be for appellate consideration before the Board. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. Here, the Veteran has withdrawn the issue of entitlement to a rating in excess of 40 percent for intractable sural nerve entrapment syndrome and chronic pain syndrome of the left lower extremity. There remains no allegations of errors of fact or law with respect to this issue. Accordingly, the Board does not have jurisdiction to review it and it is dismissed. Effective Dates The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of award based on an original claim for service connection “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110(a). The pertinent implementing regulation provides that for direct service connection the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within 1 year of separation. Otherwise, the effective date is the date of the receipt of the claim or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). Before VA can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit sought and expressing some intent to seek it. Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Brannon v. West, 12 Vet. App. 32 (1998). The effective date for an award of an increase in compensation shall be the “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400(o)(1). If, however the claim is filed within one year of the date that the evidence shows an increase in disability occurred, the effective date is the earliest date as of which that increase is factually ascertainable (not necessarily the date of receipt of the evidence). 38 C.F.R. §§ 3.157(b)(1), 3.400(o)(2); see Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. 38 C.F.R. § 3.400(o)(1)-(2). If the increase occurred after the date of the claim, the effective date is the date of increase. Id. The determination of an effective date often turns on when a claim, informal or formal, was received by VA. 38 C.F.R. § 3.155(a); see Edwards v. Peake, 22 Vet. App. 29, 31 (2008). The Board acknowledges that effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 38 C.F.R. § 20.201; 79 Fed. Reg. 57660, 57696 (Sept. 25, 2014) (eff. Mar. 24, 2015). As the Veteran’s claims at issue were submitted prior to the effective date of the amendment, the prior law and regulations governing claims will be applied in this case. For VA compensation purposes, a “claim” is defined as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p). An informal claim is “[a]ny communication or action indicating an intent to apply for one or more benefits.” It must “identify the benefit sought.” 38 C.F.R. § 3.155(a). Additionally, prior to its repeal on March 24, 2015, § 3.157(b)(1) provided that once a formal claim for compensation has been allowed, receipt of a VA examination or hospitalization report will be accepted as an informal claim for increased benefits. See Pacheco v. Gibson, 27 Vet. App. 21, 24-30 (2014). There is, however, no provision in the law for awarding an earlier effective date based simply on the presence of the disability in treatment records. See Brannon v. West, 12 Vet. App. 32, 35 (1998). 2. Entitlement to an effective date earlier than April 25, 2011, for the award of a 40 percent rating for intractable sural nerve entrapment syndrome and chronic pain syndrome of the left lower extremity. The Veteran seeks an effective date prior to April 25, 2011, for the grant of an increased 40 percent rating for intractable sural nerve entrapment syndrome and chronic pain syndrome of the left lower extremity (hereinafter “left ankle disability”). Specifically, he asserts that entitlement should be from the date of service connection (March 1, 2004) or from January 12, 2009, the date that Dr. Bash testified at his Board hearing. See Hearing Transcript 4-5. For the reasons that follow, the Board finds that the date of claim for the increased rating is January 12, 2009, instead of April 25, 2011. Historically, a September 2009 Board decision granted an increased rating of 30 percent rating for the left ankle disability. Board decisions are final when issued. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. In a November 2009 rating action that effectuated the Board’s grant of a 30 percent rating, the RO assigned an effective date of March 1, 2004. Notice of this action, and of the Veteran’s appellate rights, were issued in a letter dated December 2, 2009. The Veteran did not submit a notice of disagreement; however, new and material evidence in the form of a March 2010 VA contract examination report (discussing complex regional pain syndrome and the left ankle/extremity symptoms) was received into the record. The RO did not readjudicate the appeal and it remained pending. 38 C.F.R. § 3.156 (b). Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). A statement was received from the Veteran on April 13, 2010 indicating that his condition had worsened. An August 2010 rating decision continued the 30 percent rating. In this decision, the RO also granted service connection for chronic pain syndrome, effective January 12, 2009. The RO explained that it had changed the diagnosis of ‘sural nerve entrapment syndrome, left intractable’ to ‘intractable sural nerve entrapment syndrome and chronic pain syndrome, left lower extremity.’ The 30 percent rating was continued for both conditions, rated as a single entity. The Veteran submitted an independent medical evaluation from Dr. Bash dated March 2011, which was received on April 25, 2011. In June 2011, the Veteran submitted a statement in which he indicated that his conditions had worsened. The RO accepted the letter from Dr. Bash and the Veteran as an increased rating claim, and in a January 2013 rating decision, continued the 30 percent rating. In March 2013, the Veteran requested a reconsideration of the rating decision. A July 2013 rating decision increased the rating to 40 percent, effective April 25, 2011. The Veteran filed a timely notice of disagreement with this decision. At the outset, the Board finds that the record supports the assignment of an earlier effective date of January 12, 2009, for the grant of the 40 percent rating. First, the Board notes that because new and material evidence (i.e. the March 2010 VA contract examination report) was received within one year of the November 2009 rating decision, but the claim was not readjudicated; it remained pending and did not become final. Next, the Board finds that the earliest evidence by which it is factually ascertainable that the Veteran’s service-connected intractable sural nerve entrapment syndrome and chronic pain syndrome, left lower extremity met the criteria for a 40 percent rating is, as he suggests, the testimony from Dr. Bash that was presented at the January 12, 2009, Board hearing. At this hearing, Dr. Bash testified that the Veteran had chronic pain syndrome which affected his upper leg in addition to his sural nerve problem which caused distal foot weakness. The Veteran’s sural nerve entrapment syndrome, left intractable was originally rated under 38 C.F.R. 4.124a, DC 8521 for symptoms that affected the lower leg only. During the course of this appeal, his condition was recharacterized as intractable sural nerve entrapment syndrome and chronic pain syndrome, left lower extremity and rated under 38 C.F.R. 4.124a, DC 8520 to reflect consideration of the symptoms that affect areas above the knee extending up to the hip and thigh. Under DC 8521, severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the external popliteal nerve, involving foot drop and slight drop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Paralysis of the sciatic nerve, such as that caused by sciatica, is rated under DC 8520. Under DC 8520, moderately severe incomplete paralysis warrants a 40 percent evaluation. See 38 C.F.R. § 4.124a, DC 8520. As the RO indicated in the July 2013 rating decision which granted the 40 percent rating, the medical evidence - in particular that from Dr. Bash- indicates that he has symptoms of pain above the knee that extend up to the hip and thigh. Dr. Bash noted that the symptoms are similar to those of lumbar radiculopathy. Thus, in order to incorporate the symptoms above the knee, his disability was recharacterized as sural nerve entrapment with chronic pain syndrome to evaluate this condition analogous to sciatic neuropathy, which considers symptoms of pain in the thigh as is typical with lumbar radiculopathy. Under this criteria, moderately severe incomplete paralysis warrants a 40 percent evaluation rather than the 30 percent evaluation previously assigned. Based on careful review, the Board finds that Dr. Bash’s January 2009 testimony, the March 2010 VA examination report, and the independent medical evaluation from Dr. Bash dated March 2011 (received on April 25, 2011) all support a finding that the Veteran’s disability of intractable sural nerve entrapment syndrome and chronic pain syndrome, left lower extremity manifested with symptoms that affected not only his left ankle/lower leg area but his entire left leg. This supports the assignment of a 40 percent rating under DC 8520 (and acknowledges separate ratings for the neurologic manifestations affecting the same area would constitute pyramiding which is prohibited by 38 C.F.R. 4.14). The Veteran asserted that he should be entitled to a 40 percent rating back to the date of service connection, which is March 1, 2004. Such an earlier effective date is not warranted. As noted, the Board’s September 2009 Board decision denied an increased rating higher than 30 percent rating for the left ankle disability. Board decisions are final when issued. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Furthermore, the 40 percent rating was based in part on the symptoms associated with chronic pain syndrome. Service connection for chronic pain syndrome was granted effective January 12, 2009; thus, it cannot support the assignment of a higher 40 percent rating under DC 8520 prior to such time. For these reasons, the Board finds that January 12, 2009, but no earlier, is the date of claim for purposes of this appeal. 3. Entitlement to an effective date earlier than March 27, 2013, for the grant of service connection for headaches, as secondary to service-connected Sunderland grade IV-V injury to branches of lingual and mandibular branches of the 5th cranial nerve (trigeminal). In a July 2013 rating decision, the RO granted service connection for headaches and assigned an effective date of March 27, 2013. The Veteran seeks entitlement to an effective date of March 30, 2010, as headaches was mentioned in a March 30, 2010 VA contract examination. See Hearing Transcript, 3. After reviewing the file, the Board finds no basis for the assignment of an effective date earlier than March 27, 2013, for the grant of service connection for headaches. At the outset, the Board notes that the Veteran separated from service in February 2004. A claim, formal or informal, indicating an intent to seek service connection for headaches was not received within one year of the Veteran’s separation from service. Thus, the other possible effective date would be the date of the receipt of the claim or the date the entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2). The current effective date is March 27, 2013, the date which the RO received a claim of service connection for headaches. Correspondence from his representative submitting the VA Form 21-526b reflecting the claim for service connection for headaches had the date stamp of receipt by VA as March 27, 2013. The Board has found no evidence that the Veteran filed either a formal or informal claim for headaches prior to March 27, 2013. Prior to March 2013, the claims file does not contain a Veterans Application for Compensation and/or Pension, VA Form 21-526, or any written communication that indicates an intent to seek entitlement, or evidencing a belief in entitlement, to service connection for headaches. The Board notes that a March 30, 2010 VA contract examination for the Veteran’s temporomandibular joint (TMJ) disorder notes frequent headaches as discussed in connection for his TMJ and bruxism disabilities. However, VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). The regulations state that the effective date is the date of receipt of the original claim or the date the entitlement arose, whichever is later. Here, the Veteran is not found to have filed either a formal or informal claim for service connection for headaches prior to the claim that was received on March 27, 2013. Therefore, he is not entitled to an effective date prior to March 27, 2013 for the grant of service connection for headaches. Based on the foregoing, the claim for an effective date earlier than March 27, 2013, for the grant of service connection for headaches is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary Tang, Associate Counsel