Citation Nr: A23019162 Decision Date: 08/05/23 Archive Date: 08/05/23 DOCKET NO. 191127-51573 DATE: August 5, 2023 ORDER 1. The motion for reversal or revision of an April 1968 rating decision on the basis of clear and unmistakable error (CUE) that denied service connection for "condition of spine" is granted. 2. An effective date of October 24, 1967 is granted for service connection of chronic lumbar strain. 3. Entitlement to an effective date earlier than November 23, 2010, for the award of service connection for radiculopathy of the right lower extremity on the basis of CUE in the April 1968 rating decision is denied. 4. Entitlement to an effective date earlier than November 23, 2010, for the award of service connection for radiculopathy of the left lower extremity on the basis of CUE in the April 1968 rating decision is denied. 5. Entitlement to an effective date earlier than November 23, 2010, for the award of service connection for radiculopathy of the right lower extremity, is denied. 6. Entitlement to an effective date earlier than November 23, 2010, for the award of service connection for radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. The April 1968 rating decision that denied service connection for "condition of spine" became final. 2. At the time of the April 1968 rating decision, the correct facts, as they were known at the time, were before the Regional Office (RO), but the statutory and regulatory provisions extant at the time were not correctly applied to the disability of chronic lumbar strain. But for these errors, the outcome would have been manifestly different. 3. The claim for service connection for chronic lumbar strain was received less than a year after his October 23, 1967, separation from service. 4. CUE in the April 1968 decision is not alleged with the requisite specificity for service connection of radiculopathy of the right and left legs. 5. The competent and credible evidence of record persuasively establishes a finding that entitlement to disability benefits for radiculopathy of the left and right legs did not arise prior to November 23, 2010. The evidence is not in approximate balance. CONCLUSIONS OF LAW 1. The criteria for revision or reversal of the April 1968 rating decision on the basis of CUE are met with respect to chronic lumbar strain. 38 U.S.C. §§ 5109A; 38 C.F.R. § 3.105(a). 2. The criteria for an earlier effective date of October 24, 1967 for service connection of chronic lumbar strain are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400(b)(2)(i), (k). 3. The criteria for revision or reversal of the April 1968 rating decision on the basis of CUE for service connection for radiculopathy of the right lower extremity, are not met. 38 U.S.C. §§ 5109A; 38 C.F.R. § 3.105(a). 4. The criteria for revision or reversal of the April 1968 rating decision on the basis of CUE for radiculopathy of the left lower extremity, are not met. 38 U.S.C. §§ 5109A; 38 C.F.R. § 3.105(a). 5. The criteria for an effective date prior to November 23, 2010, for the award of service connection for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 6. The criteria for an effective date prior to November 23, 2010, for the award of service connection for radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran (the movant) had active service from September 1966 to October 1967. His many decorations include the Republic of Vietnam Meritorious Unit Citation (both Gallantry Cross and Civil Action Color with Palm and Frame), Vietnam Service Medal with two Bronze Stars, Combat Action Ribbon, This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2019 and September 2019 rating decisions issued by a Department of Veterans Affairs (VA) RO. The August 2019 rating decision adjudicated a motion for CUE in an April 1968 rating decision. The September 2019 decision was a Higher Level Review (HLR) of a May 2019 rating decision that granted service connection and assigned initial effective dates for chronic lumbar strain and bilateral lower extremity radiculopathy. In the November 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Although the Veteran identified only the September 2019 rating decision that denied entitlement to earlier effective dates for back disability and lower extremities in the 10182, given that the Veteran's contention and arguments pertain to entitlement to an effective date in November 1967, the date of his initial claim for service connection for back disability based on CUE in the April 1968 rating decision the Board finds that the August 2019 rating decision is also on appeal, as discussed during the Board hearing. This means the Board may consider only the evidence of record at the time of the RO's May 2019 decision (for the effective dates that were the subject of the September 2019 HLR decision), the August 2019 decision on appeal (for the CUE motion), as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the February 2023 Board hearing. 38 C.F.R. §?20.302(a). A copy of the February 2023 Board hearing transcript is of record. Additionally, as explained below, the nature of a CUE motion further limits the Board's consideration to evidence of record at the time of the April 1968 rating decision for the CUE issues. 1. The motion for reversal or revision on the basis of CUE of an April 1968 rating decision that denied service connection for "condition of spine." 2. Entitlement to an effective date earlier than August 5, 2010, for the award of service connection for chronic lumbar strain. The Veteran, through his attorney, contends the RO committed CUE in the April 1968 rating decision in denying service connection for a chronic lumbar strain. Significantly, the Veteran's only service-connected spinal disability is chronic lumbar strain. For this reason, the Board need not conduct an analysis of the disabilities of scoliosis or shortening of right lower extremity; as these disabilities are not service-connected, there is no effective date of service connection that could be analyzed. For this reason, the Board will limit its analysis to chronic lumbar strain. The Veteran asserts that his Enlistment Examination and the contemporaneous Report of Medical History upon entry to service did not report or note any spinal disorder or history of back problems prior to entry into service. The Veteran reported that while carrying over 50 pounds, he fell into a booby trap and was treated for chronic lumbar pain during service. The Veteran conceded that his spinal scoliosis and leg shortening were pre-existing conditions. However, he argues that the evidence before the RO at the time of the 1968 rating decision was devoid of evidence of manifestation of chronic lumbar strain prior to service. He contends that the 1968 RO decision should be revised to reflect that the Veteran incurred a chronic lumbosacral disorder while engaged in combat operations. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Once a decision becomes final, it may be revised only by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated;" and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, as well as a disagreement in the weighing of evidence, which cannot be CUE are insufficient to satisfy this requirement. See 38 C.F.R. § 20.1404(b); see also Disabled American Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000); Simmons v. Principi, 17 Vet. App. 104 (2003). At the time of the April 1968 and August 1968 RO decisions, the laws governing service connection are essentially the same they are today. Aside from minor technical revisions, the law governing the presumption of soundness is also essentially unchanged from the statutory and regulatory provisions in effect at the time of the 1968 RO decisions. See Akins v. Derwinski, 1 Vet. App. 228, 231 (1991) (wartime presumption of soundness in 38 U.S.C. §§ 310, 311, renumbered in 1991 to their current designations of § 1110, § 1111, was without substantive change since 1946). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (1968). A veteran will be considered to have been in sound medical condition upon entering active service, except as to defects, infirmities, or disorders noted at entrance, or where clear and unmistakable (obvious or manifest) evidence demonstrates that a disease or injury existed prior to service and was not aggravated during service. See 38 U.S.C. § 1111; 38 C.F.R. §§ 3.303, 3.304 (1968). As a threshold matter, the Board finds the argument advanced by the Veteran alleges CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of the claim. The Veteran's claim for service connection was received on November 13, 1967, less than a month after separating from service on October 23, 1967. The RO denied the claim in an April 1968 rating decision. The Veteran filed a notice of disagreement (NOD) in July 1968, and an SOC was issued in August 1968. An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 19.52. An NOD must be filed within one year from the date the RO mailed notice of the decision. Id. Otherwise, that determination becomes final. 38 C.F.R. § 20.1103. A timely filed NOD places the issue(s) into appellate status, which requires the issuance of an SOC. See 38 C.F.R. §§ 3.103(f), 19.26. A substantive appeal must be filed within 60 days from the date the RO mailed a claimant the SOC (or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends later). 38 C.F.R. § 19.52. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. Submission of additional evidence requiring furnishment of a Supplemental SOC can extend the period to submit a substantive appeal. 38 C.F.R. § 19.52(b)(2). The Veteran did not file a substantive appeal/VA Form 9, which then allowed the April 1968 rating decision to became final. At his hearing, the Veteran testified that this decision did become final. As it is a final decision, CUE may apply. The 1968 rating decision implicitly treated the claimed disability as a congenital defect by concluding: "Constitutional or developmental abnormalities - not a disability under the law." However, no explanation was given to support a finding that the chronic lumbar strain was congenital; it focused instead on scoliosis and shortened right leg. As explained below, the Board finds that the presumption of soundness attached to the Veteran's chronic lumbar strain as he had a normal spine examination on induction in 1966, and for the diagnosis of chronic lumbo-sacral strain, there was no clear and unmistakable evidence to rebut the presumption. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's chronic lumbar strain preexisted his military service from September 1966 to October 1967. The appellant established "veteran" status based on this period of active duty service. See Hill v. McDonald, 28 Vet. App. 243 (2016). The Veteran's June 1966 entrance examination is absent of any notations of defects, infirmities, or disorders. Additionally, the evidence is at least in approximate balance as to whether chronic lumbar strain manifested during service. Specifically, in his November 1967 original claim, he wrote, "Due to the extreme physical requirements and strain, while in combat in Vietnam, I suffered much back pain, and as a result I was ordered from combat duty and hospitalized in Japan." A Medical Board Report completed in August 1967 states that the Veteran's "chief complaint was low back pain of three months duration. There was no previous history of trauma." Therefore, with respect to chronic lumbar strain, the presumption of soundness attached. 38 C.F.R. § 3.304(b). Because the presumption of soundness attached with respect to this disability, the burden shifts to VA to show clear and unmistakable evidence that the disorder pre-existed service in order to rebut the presumption. Id. In March 2021, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision in George v. McDonough, 991 F.3d 1227 (Fed. Cir. 2021), holding that Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), which held VA must show "clear and unmistakable evidence of both a pre-existing condition and a lack of in-service aggravation to overcome the presumption of soundness, does not apply retroactively" (emphasis added). Thus, although VA must still show clear and unmistakable evidence of a pre-existing condition (i.e., the first prong), it is not required to show a pre-existing condition was not aggravated by service under the clear-and-unmistakable-evidence burden of proof. In other words, the Federal Circuit determined that the holding in Wagner was a change in interpretation of 38 U.S.C. § 1111, addressing the presumption of soundness. Therefore, it held that pre-Wagner, the proper application of the presumption of soundness did not require clear and unmistakable evidence that a pre-existing condition was not aggravated by service (i.e., the second prong). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v Shinseki, 22 Vet. App. 390, 396 (2009). An August 1967 Medical Board Certificate named diagnoses of "congenital abnormalities lumbo-sacral spine DDDIC" and "chronic lumbo-sacral strain DDDIC." Significantly, the chronic strain was not described as congenital. A November 1967 private treatment record documented the Veteran had a low back derangement and displayed apparent rotoscoliosis, pelvic tilt, and muscle spasm. The physician noted he conducted a physical examination without benefit of x-rays and that a full orthopedic evaluation was recommended. X-rays taken in conjunction with the November 1967 VA examination revealed multiple congenital anomalies of the lumbosacral spine, including hemi-segment of S1 on the right; partial spina bifida of S1, which produced a left lateral scoliosis of the lumbar spine; asymmetry of the facets at L5-S1; and an associated widening of the right sacroiliac joint. The examiner also found shortening of the right lower extremity, "which may account for the tilt of the pelvis and some of the secondary scoliosis." The examiner did not address the lumbo-sacral strain. A July 1967 STR and the Medical Board Report completed in August 1967 made two distinct diagnoses: "congenital anomalies lumbo-sacral spine not incurred in line of duty, not misconduct" and "chronic lumbo-sacral strain." Again, it is significant that the separate diagnosis of chronic strain was NOT described as congenital. The Report states that the Veteran's "chief complaint was low back pain of three months duration. There was no previous history of trauma." The evidence relevant to the chronic lumbo-sacral strain shows it began around May 1967, after a significant period of service and combat duty in Vietnam. Each piece of medical evidence available at the time of the April 1968 rating decision made a clear distinction between the diagnosed congenital abnormalities of the spine and the chronic lumbo-sacral strain. In short, at the time of the April 1968 rating decision, there was no clear and unmistakable evidence that the chronic strain disability pre-existed service. Therefore, the only possible finding based on the evidence of record at the time is that the presumption of soundness was not rebutted for this diagnosis. When VA fails to carry its burden as to preexistence, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). The April 1968 rating decision should have conducted a direct service connection analysis for the chronic lumbar strain but it did not. Service connection may be granted when the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the armed forces. 38 C.F.R. § 3.303(a) (1968). Here, the fact that the Veteran was diagnosed with chronic lumbar strain in service was undisputed at the time of the April 1968 rating decision, so it is undebatable that the first element of service connection, a current disability, was established by the evidence of record at the time. As the element of an in-service injury, the Veteran's service treatment records (STRs) show complaints of gradually increasing pain in the thoracolumbar area, which worsened with walking, lifting, and carrying. An August 1967 Medical Board Report indicates that the Veteran was hospitalized with complaints of back pain, and there was no previous history of trauma. The Veteran was treated with bedrest, muscle relaxants, analgesics, and physical therapy; however, he failed to improve. The Medical Board concluded that the Veteran did not meet the minimum standards for enlistment or induction due to a physical disability, which was neither incurred in nor aggravated by service, and he was subsequently discharged from active duty. This shows onset in service of the symptoms of chronic lumbar strain. Moreover, VA was required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). The Veteran's service personnel records reflect that he participated in combat, as evidenced by his receipt of the Combat Action Ribbon. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C. § 1154(b). Under 38 U.S.C. § 1154(b), the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease is reduced. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). As such, VA was required to presume that the Veteran injured his back in combat, as it was consistent with the circumstances, conditions, and hardships of his combat service in the Republic of Vietnam. The governing regulation at 38 U.S.C. § 354(b) (later reassigned to 1154(b)) required that the combat presumption be applied, "notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full." 85 P.L. 857, 72 Stat. 1105, 85 P.L. 857, 72 Stat. 1105. The April 1968 rating decision did not identify any clear and convincing evidence to rebut the combat presumption, nor did it provide any reasoning for denying service connection for chronic lumbar strain (as opposed to scoliosis or leg lengthening). It is undebatable that the second element of service connection, an in-service injury, was established based on the evidence of record and applicable law at the time of the April 1968 rating decision. The final element of service connection is nexus: evidence that shows the disability was incurred in service. Given the fact that the Veteran is presumed sound as to chronic lumbar strain, it was first diagnosed during service, the Veteran served for over a year, in combat, before he began to experience symptoms, and the diagnosis was one of the grounds for finding that he no longer met the minimum standards for enlistment, it was undebatable that the chronic lumbar strain was incurred in service. Significantly, the evidence addressing incurrence in service only refers to the congenital disabilities that are not the subject of this earlier effective date claim. A July 1967 Narrative Summary in the STRs from the U.S. Naval Hospital in Yokosuka, Japan, which diagnosed ""congenital anomalies lumbo-sacral spine" with the notation underneath "Not incurred in line of duty, not misconduct." The August 1967 Medical Board Report stated: "Past history, family history, and review of systems were noncontributory to present illness" and "the disability was neither incurred in nor aggravated by a period of active military service." The Medical Board Report cover sheet checked boxes for "not incurred in line of duty," "not due to own misconduct," and "existed prior to entry, not aggravated by service." The 1967 Medical Board determination was signed by three Medical Corpsman. The Board finds that with respect to the chronic lumbar strain the RO failed to correctly apply the law in place at the time of the April 1968 decision. Specifically, the RO did not correctly apply the presumption of soundness, rebuttal analysis, the combat presumption, or direct service connection law and regulations. The RO did not explain how the chronic lumbar strain was congenital, and the evidence of record at the time supports no such finding. These are errors that satisfy the first prong of CUE. For these errors to be CUE, it must be undebatable that, but for the error, the outcome of the decision would have been different. As explained above, considering the evidence of record at the time of the April 1968 rating decision and the correct application of the laws in place at the time leads to the undebatable outcome that service connection would have been granted for chronic lumbar strain on a direct basis under 38 C.F.R. §3.303(a). Therefore, the Board concludes that there was CUE in the April 1968 rating decision. As a result, the original November 13, 1967 claim is granted. As the claim was filed less than a month after separation from service, the day after separation from service is the appropriate effective date. The Veteran separated from service on October 23, 1967, so the proper effective date of service connection for chronic lumbar strain is October 24, 1967. 1. Entitlement to an effective date earlier than November 23, 2010, for the award of service connection for radiculopathy of the right lower extremity on the basis of CUE in the April 1968 rating decision, to include the August 1968 SOC. 2. Entitlement to an effective date earlier than November 23, 2010, for the award of service connection for radiculopathy of the left lower extremity on the basis of CUE in the April 1968 rating decision, to include the August 1968 SOC. The April 1968 rating decision did not adjudicate a claim of entitlement to service connection for radiculopathy of the right or left lower extremity. To the extent the Veteran claims that there was an implicit denial of such a claim, the Board finds that no such claim existed at the time of the April 1968 rating decision. The Veteran has not made a specific argument regarding what the CUE was in the April 1968 decision with respect to radiculopathy of the bilateral legs. Therefore, the Board finds that CUE is not alleged with the requisite specificity for radiculopathy. See August 2019 and November 2019 briefs; Simmons v. Principi, 17 Vet. App. 104 (2003). Moreover, the November 13, 1967 claim specifically identified a "lumbo-sacral spine condition" and did not mention any disability of radiculopathy in the legs. While the Veteran mentioned pain in legs and "nerves are no good" at a January 1968 examination, simply mentioning a symptom at an examination was not sufficient to establish an original claim for service connection. 38 C.F.R. §§ 3.156, 3.157. The Board finds no error in application of the statutory or regulatory provisions in existence at the time of the April 1968 rating decision, and the correct facts in the record were before the adjudicator with respect to radiculopathy of the bilateral legs. Therefore, these CUE claims are denied. 3. Entitlement to an effective date earlier than November 23, 2010, for the award of service connection for radiculopathy of the right lower extremity. 4. Entitlement to an effective date earlier than November 23, 2010, for the award of service connection for radiculopathy of the left lower extremity. In the May 2019 rating decision, the RO awarded service connection for chronic lumbar strain, effective from November 23, 2010, and service connection for radiculopathy of the right and left lower extremity as secondary to the chronic lumbar strain, effective from November 23, 2010. The Veteran filed a request for Higher Level Review in August 2019. In September 2019, the RO denied the claims for earlier effective dates. In November 2019, the Veteran filed the VA Form 10182. Neither the Veteran nor his attorney have made any specific argument to support the claim for earlier effective dates for service connection bilateral leg radiculopathy. See 2019 appellate briefs, February 2023 hearing transcript. Nevertheless, as the chronic lumbar strain has now been granted an earlier effective date of October 24, 1967, and service connection for the radiculopathy of the bilateral legs was granted as secondary to the service-connected back disability, the Board will analyze the claim. The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on a claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim 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. See 38 C.F.R. § 3.400. The Veteran does not contend that he filed a claim for service connection for radiculopathy prior to November 23, 2010. In fact, the record shows that no specific claim was ever filed for radiculopathy; rather, when the RO granted service connection for a back disability in May 2019 and assigned an initial disability rating, they also assigned disability ratings for radiculopathy of the left and right legs as neurological abnormalities associated with the service-connected chronic lumbar strain. A November 22, 1967 letter from a private doctor stated that straight leg raising and Lasegue tests were negative. These are two terms for the same test for lumbosacral radiculopathy to the legs. See Dorland's Illustrated Medical Dictionary, 1737 "Lasegue sign" (31st ed. 2007); see also "Straight Leg Raise Test" at https://www.ncbi.nlm.nih.gov/books/NBK539717. At the January 22, 1968 VA examination, the Veteran reported "pain in hips and legs. Nerves are no good." However on physical examination, the doctor found that the General Medical examination was "essentially negative." The examiner reported that the straight leg raising test was negative bilaterally. An August 2010 VA treatment record shows the Veteran reported his longstanding spinal condition but reported it "does not radiate to the legs." November 23, 2010 is the date of a VA spine examination report. The examiner captured the Veteran's "report of radiation of pain to both legs, reportedly since 1967. Pain to the posterior thighs. No reported flare-ups of radiation of pain." However, on physical examination, sensation was intact to both monofilament and light touch on both legs and feet, reflexes and strength were normal bilaterally. The examiner concluded, "Subjective bilateral lower extremity radiculopathy, with no objective evidence of disease for the symptom on exam today. Insufficient medical evidence to support a valid diagnosis." In summary, while the Veteran reported that he had radiation to both legs since 1967, this lay evidence is contradicted by the Veteran's own report while seeking care in August 2010. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, bias, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Here, the Board finds that the denial of pain radiating to legs in August 2010 while the Veteran sought treatment is more credible than the report three months later of a 40+ year history of radicular pain made for the purpose of seeking disability benefits. Similarly, while the Veteran reported leg pain and made a vague statement about nerves in 1968, the objective medical testing at that time was negative for radiculopathy. All of the radiculopathy testing conducted in 1967, 1968, and 2010 was negative. The Board finds that the objective medical evidence of record in this case outweighs the internally inconsistent lay reports of radicular pain. Therefore, the Board finds that the evidence does not support a finding of that a current disability of bilateral radiculopathy was established prior to November 23, 2010. As a result, entitlement to the benefit did not arise prior to November 23, 2010. The Board need not make a finding regarding the earliest date of claim for radiculopathy, because even if a claim for radiculopathy was submitted earlier than November 23, 2010, the date entitlement arose would be the later of the two. As the AOJ has assigned the earliest possible effective dates provided by law, the appeal is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah Campbell, 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.