Citation Nr: 1328069	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  01-07 502	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an increased rating for a low back disability, currently rated 40 percent.

2.  Entitlement to an effective date earlier than January 29, 2010, for a separate compensable rating for left leg polyradiculopathy.

3.  Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU).


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Becker, Associate Counsel
INTRODUCTION

The Veteran served on active duty from September 1977 to May 1979.

This matter comes before the Board of Veterans' Appeals (Board) from a July 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that continued a 40 percent rating for a low back disability.  In October 2003, November 2006, July 2008, June 2009, and October 2010, the Board remanded this matter for additional development.  Adjudication now may proceed since this development has been substantially completed.  Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

As a result of the aforementioned development, a June 2010 rating decision of the Appeals Management Center granted a separate 10 percent rating for left leg polyradiculopathy effective January 29, 2010.  The Veteran appealed that effective date.  He requested a hearing at his local VA office.  One was scheduled but was not held due to his failure to appear.  Therefore, his hearing request is deemed withdrawn.  38 C.F.R. § 20.704(d) (2012).

A July 2012 RO rating decision granted service connection and assigned a 40 percent rating effective December 7, 2011, for right lower extremity radiculopathy as secondary to the Veteran's low back disability.  The Veteran has not initiated an appeal of that decision and it is not before the Board.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302 (2012).

Finally, a supplemental statement of the case constituting the last adjudication of this matter was issued in January 2012.  New pertinent evidence was added to the record thereafter.  It is considered by the Board in the first instance because the Veteran's representative waived the right to initial review by the agency of original jurisdiction (AOJ) in a July 2013 statement.  38 C.F.R. § 20.1304(c) (2012).  The following decision is based on review of the Veteran's paper claims file and Virtual VA electronic claims file.


FINDINGS OF FACT

1.  The Veteran's low back disability, which has not been diagnosed as intervertebral disc syndrome or any similar disc condition, has not manifested any ankylosis or pronounced, persistent disc symptoms, and he has not suffered any residuals of vertebra fracture or incapacitating episodes because of it.

2.  There is no informal claim, and the Veteran likely had a left leg objective neurologic abnormality such as polyradiculopathy associated with his low back disability by September 26, 2003, a date subsequent to his formal claim when the law first allowing for a separate rating in this regard became effective.


CONCLUSIONS OF LAW

1.  The criteria for a rating higher than 40 percent for a low back disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5289, 5292, 5293, 5295 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2012).

2.  The criteria for an effective date of September 26, 2003, for the grant of a separate 10 percent rating for left leg polyradiculopathy have been met.  38 U.S.C.A. § 5107, 5110 (West 2002); 38 C.F.R. § 3.1, 3.102, 3.114, 3.155, 3.157, 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty of notification with respect to a claim for benefits.  38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159 (2012).  The claimant and his representative must be notified of the evidence necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  For increased ratings, generic rather than specific notice about substantiating the claim is required.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  Notice of how ratings and effective dates are assigned also should be included.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Notice should precede the initial decision by the AOJ.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Yet there is no error in failing to provide prior notice if it was not required then.  Notice followed by readjudication instead must be provided.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

Neither the Veteran nor his representative has alleged notice prejudice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  None is found by the Board.  March 2004, December 2006, March 2008, August 2008, and June 2010 letters notified the Veteran and his representative of the criteria for establishing an increased rating, the evidence required, his and VA's duties for obtaining evidence, and how ratings and effective dates are assigned.  None of those letters preceded the initial adjudication in July 2001.  Yet some of the information in them was not required until later, and there was subsequent readjudication in supplemental statements of the case including the last dated in January 2012.  To the extent there have been timing errors, any error has been cured by the readjudication following notice.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  Any defect with respect to notice content or timing further is harmless because the Veteran has had a meaningful opportunity to participate in the processing of this matter.  The essential fairness of adjudication has not been impacted.

In addition to the duty to notify, VA has a duty to assist in the development of a claim for benefits.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).  That includes a requirement to aid the claimant in the procurement of relevant records.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).  VA also is required to provide a medical examination or obtain a medical opinion when necessary.  38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012).

The Veteran has had many opportunities, some afforded to him pursuant to the Board's remands, to identify pertinent records.  VA treatment records, Social Security Administration (SSA) records, and private treatment records are available for consideration.  In April 2004, August 2008, and January 2010, the Veteran underwent VA medical examinations.  Another VA medical examination was undertaken in May 2012.  To the extent the paper or electronic claims file was not reviewed by the examiners, it is of no great import since the Veteran gave an accurate account of his medical history.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008).  All examiners interviewed him regarding his symptoms and undertook an assessment.  Those actions have provided sufficient detail so that this decision is fully informed.  Therefore, the examinations are adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

It is significant that neither the Veteran nor his representative has identified any further development necessary for fair adjudication that has not been completed.  The record also does not indicate any further development.  Accordingly, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Therefore, appellate review may proceed.  Bernard v. Brown, 4 Vet. App. 384 (1993).

Increased Rating

Disability ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability.  38 U.S.C.A. § 1155 (West 2002).  A rating is assigned by comparing the extent to which a claimant's disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the rating criteria for the disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.10 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Examinations must be interpreted, and if necessary reconciled, into a consistent picture so that the rating is accurate.  38 C.F.R. § 4.2 (2012).  If two ratings are potentially applicable, the higher is assigned if the disability more nearly approximates the criteria required for the higher rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant, however.  38 C.F.R. § 4.3 (2012).  The Veteran prevails if the evidence supports an increased rating or is in relative equipoise, but does not prevail when the preponderance of the evidence is against an increased rating.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The assignment of a staged rating, where two or more ratings are assigned for different portions of the period on appeal, must be considered.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994).

A musculoskeletal disability involves the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40 (2012).  Functional loss in the form of limitation of motion may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion, or weakness.  38 C.F.R. §§ 4.40, 4.59 (2012).  It also may be due to excess fatigability or incoordination.  38 C.F.R. § 4.45 (2012).  An increased rating for functional loss, to include during flare ups, due to those factors accordingly may be assigned under Diagnostic Codes predicated on limitation of motion.  38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995).

The rating criteria for disabilities of the spine were revised twice during the period on appeal.  Revised rating criteria can be applied only to the period beginning on the effective date of the revision.  However, the former rating criteria can be applied even after the effective date of the revision if doing so is more favorable to the claimant.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Karnas v. Derwinski, 1 Vet. App. 308 (1991); VAOPGCPREC 3-00 (2000), 65 Fed. Reg. 33,422 (2000).

Prior to September 26, 2003, severe limitation of motion of the lumbar spine warranted a maximum 40 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002).  A maximum 40 percent rating also was warranted for severe lumbosacral strain with listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, narrowing or irregularity of the joint space, or some of these with abnormal mobility on forced motion.  38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002).  Favorable ankylosis of the lumbar spine also warranted a 40 percent rating, while unfavorable ankylosis of the lumbar spine warranted a 50 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5289 (2002).  Ratings of 60 or 100 percent were assigned for complete bony fixation (ankylosis) of the spine and residuals of vertebra fracture.  38 C.F.R. § 4.71a, Diagnostic Codes 5285 and 5286 (2002).

Effective September 26, 2003, ratings are to be made with or without symptoms such as pain, whether or not it radiates, stiffness, or aching under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012).  A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is limited to 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012).  Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012).  The maximum 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2012).

Normal thoracolumbar spine forward flexion is from 0 to 90 degrees.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (2), Plate V (2012).  Separate ratings are to be assigned under appropriate Diagnostic Codes for bowel impairment, bladder impairment, or any other objective neurologic abnormality associated with the spinal disability.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (1) (2012).

Prior to September 23, 2002, a 40 percent rating was warranted for intervertebral disc syndrome (IVDS) that was severe with recurring attacks and intermittent relief.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002).  A maximum rating of 60 percent was warranted for IVDS that was pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc and little intermittent relief.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002).

Effective September 23, 2002, IVDS was rated on the total duration of incapacitating episodes over the past 12 months, or by combining separate ratings of all chronic orthopedic and neurological manifestations, whichever method results in the higher rating.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003).  A 40 percent rating was warranted for incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months, while a 60 percent rating was warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003).  An incapacitating episode was defined as a period of acute signs and symptoms requiring physician treatment and bed rest prescribed by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1) (2003).

Effective September 26, 2003, IVDS is rated under either the aforementioned General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher rating.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012).  Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months results in award of a 40 percent rating.  The maximum rating of 60 percent is awarded for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  An incapacitating episode remained defined as a period of acute signs and symptoms requiring physician treatment and bed rest prescribed by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1) (2003).

The probative value of the evidence must be assessed.  38 C.F.R. § 4.6 (2012).  The Board must account for evidence it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  That includes any lay evidence in addition to the medical evidence.  Only the most relevant evidence need be discussed, even though all the evidence has been reviewed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  That includes evidence dated from one year prior to the date of receipt of an increased rating claim.  38 C.F.R. § 3.400(o)(2) (2012).  It also includes prior evidence that sheds light on the disability during the period of review.  38 C.F.R. § 4.1 (2012).

In light of the evidence, the Board finds that an increased rating for the Veteran's low back disability is not warranted.  The currently assigned 40 percent rating is the highest non-IVDS rating allowed, absent unfavorable ankylosis of the lumbar spine or complete bony fixation (ankylosis) of the spine and residuals of vertebra fracture.  That rating also is the highest non-IVDS rating allowable beginning September 26, 2003, absent unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine.  There is no indication that the Veteran has any spinal ankylosis, whether favorable or unfavorable, or suffers from the residuals of any vertebra fracture.

There is no mention of ankylosis at the April 2004, August 2008, January 2012, or May 2012 VA medical examinations.  May 2002 and June 2003 SSA medical examinations also do not mention of ankylosis.  Finally, VA and private treatment records are silent with respect to ankylosis.  Some documentation of ankylosis would be expected if it had been present.  Buczynski v. Shinseki, 24 Vet. App. 221 (2011).  Rather, the aforementioned documents that the Veteran generally has been able to move his thoracolumbar spine to a varying degree in every direction.  The only exception is when his extension was to 0 degrees at one of the April 2004 VA medical examinations.  However, that appears to be an anomalous finding.  Another April 2004 VA medical examination found some extension ability.  One of the January 2010 VA medical examinations additionally found some extension ability, both initially and upon repetition.  It follows that there is no immobility, consolidation, stiffening, or fixation of the Veteran's lumbar or thoracolumbar spine at a specific point.  The Veteran has not complained of ankylosis or claimed to have ankylosis.  Diagnostic tests, to include X-rays, show degenerative changes but do not show any vertebra fracture, or residuals of any vertebral fracture.

The Board next finds that a separate rating for a neurologic abnormality associated with the Veteran's low back disability at some point from September 26, 2003, beyond those already assigned, is not warranted.  Service connection already has been granted and separate ratings assigned for left leg polyradiculopathy and right lower extremity radiculopathy.  No objective findings related to bowel or bladder impairment have been made.  And no bowel or bladder impairment was found at the VA medical examinations or SSA examinations or in the VA and private treatment records, as would be expected if in existence.  Buczynski v. Shinseki, 24 Vet. App. 221 (2011).  The Veteran has not lodged any subjective complaints, but has bowel or bladder impairment, particularly at one of the April 2004 and January 2010 VA medical examinations.  Limited sexual activity, partially as a result of his low back disability and partially as a result of his blood pressure medication, was referenced at one of the April 2004 VA medical examinations.  However, the inability to engage in sexual activity as a result of his low back disability never has been referenced.  Erectile dysfunction was denied by the Veteran at one of the January 2010 VA medical examinations.  There is no suggestion of any other neurologic abnormality, except for those of the legs, attributable to his low back disability.

With respect to IVDS, a rating higher than the current 40 percent rating is possible only if there was pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other appropriate neurological findings with little intermittent relief.  A rating higher than the current 40 percent rating also is possible from September 23, 2002, to September 25, 2003, and beginning September 26, 2003, only for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  The evidence does not support a finding that the Veteran had pronounced IVDS with persistent symptoms and little intermittent relief or suffers from incapacitating episodes lasting at least six weeks per year prior to September 26, 2003.  As of December 7, 2011, the Veteran was rated 40 percent for the orthopedic back disability, and 40 percent and 20 percent for the lower extremity neurologic disabilities, which is a greater benefit than a single 60 percent rating.  Under the old criteria, leg neurologic ratings cannot be combined with IVDS ratings as they are contemplated in the rating criteria.  38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5293 (2012).  Prior to December 7, 2011, the evidence does not show little intermittent relief that would warrant the assignment of a 60 percent rating under the old criteria for rating IVDS.

Of import at the outset is that the Veteran has not been diagnosed with IVDS or any similar condition affecting his spinal discs.  Like above, it is expected that such a diagnosis would have been made if appropriate.  Buczynski v. Shinseki, 24 Vet. App. 221 (2011).  The June 2003 SSA medical examination included a notation that there was no imaging verifying some sort of disc problem.  Even if the Veteran did have IVDS or a similar disc condition, he has complained of characteristic pain radiating down one or both legs only since the April 2004 VA medical examinations.  He never has had absent ankle jerks.  Indeed, at least some amount of ankle jerk or reflex was detected at VA medical examinations in April 2004, August 2008, January 2010, and May 2012, and at the May 2002 and June 2003 SSA medical examinations.  The Veteran also has not consistently had demonstrable muscle spasm.  Of the aforementioned, muscle spasm was noted only at the May 2002 SSA medical examination.  It specifically was found to be absent at one of the April 2004 and January 2010 VA medical examinations.  There is no need to discuss other neurological appropriate findings or the amount of relief the Veteran experiences in light of the lack of the other required findings, but the evidence does not support a finding of little intermittent relief of IVDS symptoms.  Regarding incapacitating episodes, he has not experienced any.  He occasionally has had periods of acute signs and symptoms requiring physician treatment.  Most of his VA and private treatment records concern scheduled appointments, but a visit to VA in February 2005 was unscheduled.  Reference was made to emergency room treatment in recent months in a May 2005 VA treatment record.  In any event, bed rest was not prescribed at that time.  Bed rest otherwise never has been prescribed.  It was noted at one of the April 2004 VA medical examinations that the Veteran had no incapacitating episodes requiring bed rest.  The Veteran finally has not complained of incapacitating episodes, whether in the medical examinations or treatment records or in his statements.

The Board has considered resolving reasonable doubt in favor of the Veteran in making each of the above conclusions leading to the determination that an increased rating for the Veteran's low back disability is not warranted.  However, the preponderance of the evidence is against the assignment of any higher rating.  Consideration also has been given staging the Veteran's 40 percent rating for his low back disability.  Yet that rating is found appropriate for the entire period on appeal, and the preponderance of the evidence is against the assignment of any higher rating.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The alternative to assigning a rating using the Rating Schedule is to assign one on an extraschedular basis.  38 C.F.R. § 3.321(b) (2012); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).  There are three steps to be taken regarding the determination of the propriety of the assignment of extraschedular ratings.  First, a determination of whether the evidence presents such an exceptional disability picture that the schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology must be made.  If the rating criteria are inadequate, it must be determined whether the Veteran exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral third must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating.  38 C.F.R. § 3.321(b)(1) (2012); Thun v. Peake, 22 Vet. App. 111 (2008).

Of import, neither the Veteran nor his representative has argued for an extraschedular rating.  There is no indication that his low back disability cannot be contemplated adequately by the schedular evaluation criteria discussed above.  The Veteran's symptoms, which VA and SSA medical examinations and VA and private treatment records show primarily consist of pain, stiffness, and limited motion, specifically are accounted for by these criteria and associated regulatory criteria.  The assigned rating has been based on those criteria.  Higher ratings exist pursuant to those criteria, but the Veteran does not meet the criteria for any higher rating.  The effect the low back disability has on him is encompassed by the assigned rating.  That includes resulting limitations in his ability to sit, stand, walk, climb stairs, lift, carry, sleep, drive, shop, exercise, do chores, travel, and engage in other daily activities including recreation .  It also includes the notations and reports that he takes medication, uses a heating pad and a transcutaneous electrical nerve stimulation unit, wears a brace or corset, requires a cane, and needs assistance from others.

Because the schedular rating criteria are adequate, the Board does not find an exceptional low back disability picture.  Discussion of whether there are related factors such as marked interference with employment or frequent periods of hospitalization accordingly is unnecessary.  Yet it is of note that there is no indication the Veteran has been hospitalized overnight due to his disability.  It also is of note that while there is some interference with his ability to work as a result of his disability, that interference falls short of marked.  He has contended, particularly in an April 2001 VA treatment record, that his low back disability has a severe impact on his ability to work  Yet it was opined at the January 2010 VA medical examination that he was occupationally limited only as a result of pain, decreased strength, lack of stamina, and problems with lifting and carrying.  Nothing more significant was noted.  In sum, the Board finds that referral for consideration of the assignment of an extraschedular rating is not warranted.

Earlier Effective Date

A claim is a written formal or informal communication requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p) (2012).  An informal claim is a communication or action indicating intent to apply for one or more benefits.  38 C.F.R. § 3.155(a) (2012).  In some cases, a report of examination or hospitalization may be accepted as an informal claim.  38 C.F.R. § 3.157(a) (2012).  The date of VA outpatient or hospital examination or the date of VA hospital admission will be accepted as the date of receipt of the claim when the examination or hospitalization reports relate to a service-connected disability or when a claim specifying the benefit sought is received within one year from that date.  38 C.F.R. § 3.157(b)(1) (2012).  The date of receipt of private or non-VA government examination, hospitalization, or treatment reports also is accepted as the date of receipt of the claim when they relate to a service-connected disability.  38 C.F.R. § 3.157(b)(2-3) (2012).

The effective date of an award of compensation generally is fixed in accordance with the facts found, but cannot be earlier than the date of receipt of the claim for compensation.  38 U.S.C.A. § 5110(a) (West 2002).  The effective date for an increased rating is the later of date of receipt of the claim or the date entitlement arose.  38 C.F.R. § 3.400(o)(1) (2012).  However, if the evidence demonstrates that an increase in disability occurred within the one year period preceding the date of receipt of the claim, the effective date is the earliest date that the increase in disability was factually ascertainable.  38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012); Harper v. Brown, 10 Vet. App. 125 (1997).  When an increase in disability is factually ascertainable is based on the available evidence.  Quarles v. Derwinski, 3 Vet. App. 129 (1992).  For awards of compensation to include increased ratings made pursuant to liberalization of the law, the effective date shall not be earlier than the effective date of the liberalization.  38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114(a) (2012).

The Veteran prevails if the evidence supports an earlier effective date or is in relative equipoise such that reasonable doubt is resolved in his favor but does not prevail when the preponderance of the evidence is against an earlier effective date.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Board also once again must account for evidence it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  That includes any lay evidence in addition to the medical evidence.  Only the most relevant evidence need be discussed, even though all the evidence has been reviewed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

The Board finds, based on the evidence, that the date of receipt of the Veteran's claim is January 2, 2001.  A formal claim was signed by him a few days prior in December 2000, but was not received until January 2, 2001.  The Veteran indicated in that claim that he was seen at the VA Medical Center (VAMC) in Birmingham, Alabama.  The Veteran's statement suggested that he was referencing ongoing treatment, instead of having been treated in a particular occasion.  Therefore, the Board finds that there is no informal claim prior to January 2, 2001, based on a report of VA hospital examination or admission.  There also is no informal claim based on private or non-VA government examination, hospitalization, or treatment reports since none were received prior to the aforementioned date.

With the one year exception, the effective date for the Veteran's separate 10 percent rating for left leg polyradiculopathy would be the earliest date beginning January 2, 2000, where it is factually ascertainable that he had the aforementioned disability due to his service-connected low back disability.  However, a separate rating for an objective neurologic abnormality associated with a service-connected spinal disability was allowed only when the revised rating criteria became effective on September 26, 2003.  The Board therefore finds that the effective date is the earliest date on or after September 26, 2003, where it is factually ascertainable that the Veteran had the a neurologic disability of the leg due to his service-connected low back disability.

The Veteran complained of radiation of his low back pain into one or both legs characteristic of sciatic neuropathy beginning with the April 2004 VA medical examinations.  However, he specifically complained of the right leg at that time.  He did not complain about his left leg.  To the extent he now indicates his left leg was problematic by at least April 2004, the VA medical examination to the contrary is more persuasive because it was contemporaneous to that time.  Curry v. Brown, 7 Vet. App. 59 (1994).  The first report concerning left leg symptoms was made by the Veteran at one of the August 2008 VA medical examinations.  He is a lay person, as there is no indication he has any medical background.  He is competent in describing his symptoms because they are within his personal experience as a lay person.  Layno v. Brown, 6 Vet. App. 465 (1994).  Competent lay evidence may be discounted due to interest, self-interest, bias, inconsistency, inconsistency with other evidence, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor.  Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).  The Veteran is credible as it relates to the aforementioned assertions because none of those factors is significant.

However, the Veteran is not competent to diagnose himself with an objective neurologic abnormality associated with his low back disability of the left leg such as neuropathy or radiculopathy.  A lay person is competent to diagnose a condition when the lay person is competent to identify the condition, is reporting a contemporaneous medical diagnosis, or describes symptoms supporting a later medical diagnosis.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Conditions such as flat feet, a dislocated shoulder, certain skin ailments, tinnitus, and varicose veins are examples of those a lay person is competent to identify.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398 (1995).  Neuropathy and radiculopathy are more complex to diagnose, especially since there are a variety of conditions that manifest similar symptoms.

That complexity is apparent in the conflicting medical evidence.  At the May 2002 SSA medical examination, it was noted that there was no definitive evidence of radiculopathy.  At the June 2003 SSA medical examination, it was noted that there was some radiculopathy.  One of the April 2004 VA medical examinations diagnosed possible radiculopathy with confirmation to come from an electromyogram.  That and nerve conduction velocity testing could not be completed due to the Veteran's intolerance.  However, the determination was made that there was no evidence of peripheral neuropathy in the left leg.  No conclusion could be drawn regarding the isolated denervation in one left L5 muscle.  At the August 2008 VA medical examinations, that the Veteran's identified left leg symptoms were not straightforward symptoms of radiculopathy was highlighted.  Possible radiculopathy was diagnosed, with a definitive diagnosis to depend on the tests.  When conducted, there was no evidence of left leg neuropathy.  Radiculopathy could not be fully assessed due to the Veteran's poor tolerance..  A December 2008 addendum to the examinations contained the opinion that he less likely than not had left leg radiculopathy.  It was noted, in addition to the uncharacteristic symptoms and poor tolerance, that the examinations findings were inconsistent with that diagnosis.  December 2008 and January 2009 private treatment records show that the Veteran had difficulties with the veins in his left leg for years.  The tests performed as part of the January 2010 VA medical examinations were indicative of left lumbar polyradiculopathy.  Thus, it was accepted that the Veteran had that disability by the May 2012 VA medical examination.

The Board is prohibited from rendering its own opinion on a medical question.  Stefl v. Nicholson, 21 Vet. App. 120 (2007); Colvin v. Derwinski, 1 Vet. App. 171 (1991).  That includes that concerning when the Veteran first manifested a left leg objective neurologic abnormality associated with his low back disability.  That the veins in his left leg were problematic and therefore could have accounted for some of his symptoms and the findings is for medical professionals to evaluate instead of the Board.  A medical professional first detected the presence of a qualifying left leg disability in the June 2003 SSA medical examination.  VA medical professionals deemed the condition possible by the time of the April 2004 VA medical examinations, with confirmation via testing by the time of the January 2010 VA medical examinations.  It is conceded that, had the Veteran been able to tolerate testing, confirmation could have come as early as the April 2004 VA medical examinations or the August 2008 VA medical examinations.

In sum, the Board finds that the preponderance of the medical evidence shows that the Veteran likely had a left leg neurological disability associated with his low back disability a few months prior to the earliest allowable effective date of September 26, 2003.  That diagnosis stands despite his failure to describe characteristic symptoms and receive a definitive diagnosis until years later.  That delay was enhanced by his inability to undergo testing to confirm the diagnosis.  Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that an effective date of September 26, 2003, but not earlier, for the Veteran's separate 10 percent rating for his left leg polyradiculopathy is granted.  The preponderance of the evidence is against the assignment of any earlier effective date.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

A rating higher than 40 percent for a low back disability is denied.

An effective date of September 26, 2003, but not earlier, for a separate 10 percent rating for left leg polyradiculopathy is granted.


REMAND

VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record currently before it is inadequate.  38 U.S.C.A. § 5103A (West Supp. 2010).

Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340, 4.15 (2012).  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, if expressly raised by the Veteran or reasonably raised by the record, is part of an increased rating claim because it involves an attempt to obtain an increased disability rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

All indications are that the Veteran last worked in July 2001, when he fell and injured himself.  He indicated at a January 2010 VA medical examination that he quit working due to back and arm problems.  VA treatment records show that he has a college education, while SSA records show that his past work history includes sedentary-like positions requiring only a light level of exertion.

The Board finds that a VA examination would be useful to determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities.

Accordingly, this case is REMANDED for the following:

1.  Schedule the veteran for a VA examination to determine whether he is unable to secure or follow a substantially gainful occupation by reason of his service connected disabilities  The examiner should review the claims file and should note that review in the report.  Specifically the examiner should opine whether it is at least as likely not (50 percent or greater or probability) that the Veteran is unable to secure of follow a substantially gainful occupation by reason of his service-connected disabilities of a low back disability and bilateral leg radiculopathy.  The examiner can consider the Veteran's work history and training, but not nonservice-connected disabilities or age in making the opinion.  If the Veteran is felt capable of employment, the examiner should state what type of employment and what accommodations would be needed due to the service-connected disabilities:

2.  Then, readjudicate the issue on appeal.  If any decision is adverse to the veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to the Board.

The veteran is hereby informed that failure to report for a scheduled examination or failure to cooperate with any requested development may result in the denial of the claim.  38 C.F.R. § 3.655 (2010).

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



____________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs