Citation Nr: 18141505 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-18 256 DATE: October 10, 2018 ORDER Entitlement to a May 17, 2007 effective date for a 20 percent initial rating for degenerative joint disease (DJD) of the lumbar spine is granted, subject to the laws and regulations of monetary awards. Entitlement to a May 17, 2007 effective date for a 20 percent initial rating for lumbar radiculopathy of the left lower extremity is granted, subject to the laws and regulations of monetary awards. FINDINGS OF FACT 1. From May 17, 2007, the Veteran’s DJD of the lumbar spine more nearly approximated forward flexion of the thoracolumbar spine to 60 degrees. 2. From May 17, 2007, the Veteran’s left lower extremity lumbar radiculopathy more nearly approximated moderate incomplete paralysis of the external popliteal nerve. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for DJD of the lumbar spine from May 17, 2007 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.400, 4.1-4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for a 20 percent rating for left lower extremity radiculopathy from May 17, 2007 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.400, 4.1-4.7, 4.124a, DCs 8799-8721. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran service on active duty from April 1983 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that assigned a May 17, 2007 effective date for service connection for both disabilities and 20 percent ratings for each disability from March 23, 2012. The Veteran timely appealed the assigned effective dates in a July 2012 notice of disagreement (NOD), contending that the effective dates for the 20 percent ratings “should go back to the original date of claim.” For the reasons in the decision below, the Board agrees. In October 2018, the Veteran had a videoconference hearing before the undersigned Veterans Law Judge. The transcript from the hearing has not yet been associated with the file, but as the benefit sought is being granted in full, the transcript is not necessary for a decision in this case. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. In his April 2014 NOD and again during the October 2018 videoconference hearing, the Veteran identified the benefit sought on appeal as an effective date of May 17, 2007 for the 20 percent rating awards for DJD of the lumbar spine and lumbar radiculopathy of the left lower extremity. The Board will grant the benefits sought by the Veteran as explained below. Consequently, further consideration of notice and assistance compliance is not necessary. Entitlement to a May 17, 2007 effective date for 20 percent ratings for degenerative joint disease (DJD) of the lumbar spine and lumbar radiculopathy, left lower extremity These disabilities share a common history and the Board will consider them together. By way of background, the Veteran originally filed May 17, 2007 service connection claims for these disabilities that were denied in a February 2008 rating decision. In March 2012, the Veteran submitted additional service treatment records (STRs) and requested reconsideration of the claim. The RO granted service connection for both disabilities and in the February 2014 rating decision, assigned a May 17, 2007 effective date for service connection since the awards were based on previously unconsidered STRs. 38 C.F.R. § 3.156(c). However, it assigned March 23, 2012, the date of the request for reconsideration, as the effective date for the 20 percent rating awards. The Veteran contends 20 percent ratings are warranted for each disability from the date of service connection. See April 2014 notice of disagreement (NOD); October 2018 hearing report. Both claims will be granted as explained below. Generally, the effective date of a VA compensation award is the date of receipt of claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. 5107(b); 38 C.F.R. 4.3. For service-connected DJD of the lumbar spine, the Veteran has a noncompensable rating from May 17, 2007 and a 20 percent rating from March 23, 2012, under DC 5242. 38 C.F.R. § 4.71a, DC 5242. DC 5242 provides ratings pursuant to the General Rating Formula. The record does not raise the issue of incapacitating episodes due to lumbar spine IVDS and further consideration of this alternative rating criteria is not warranted. Under the General Rating Formula for lumbar spine disability, such disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. As relevant, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the entire thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). Any associated neurological abnormalities are evaluated separately under the appropriate diagnostic code. See Note 1, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a. For service-connected moderate lumbar radiculopathy of the left lower extremity, the Veteran is currently rated as noncompensable from May 17, 2007 and 20 percent disabling from March 23, 2012 under DCs 8799-8721. Briefly, hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27. In this case, DC 8799 is used to identify the service-connected disability, but the disability is actually rated under 38 C.F.R. § 4.124a Schedule of ratings – neurological conditions and convulsive disorders, DC 8721 for Neuralgia of the external popliteal nerve. 38 C.F.R. § 4.124a, DC 8721. Diseases affecting the nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a. Paralysis of the external popliteal nerve (common peroneal), is rated under DC 8721. Under DC 8721, a 20 percent rating is awarded for moderate incomplete paralysis warrants a 20 percent rating. Mild incomplete paralysis warrants a 10 percent rating. Id. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The words "mild," "moderate," and "severe" are not defined in the VA Rating Schedule. 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, Diseases of the Peripheral Nerves. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. Turning to the record, December 2006 VA treatment records showed that the Veteran complained about chronic back pain and left lower extremity pain. The clinician assessed herniated disc at L5-S1. May 2007 VA treatment records included complaints of worsening back and lower extremity pain. The clinician assessed chronic intermittent back pain with left lower extremity radiculopathy. In May 2007, Dr. S confirmed that the Veteran had a herniated disc, L5-S1 diagnosis and intermittent numbness of the left lower extremity. He believed these disabilities were related to service. VA treatment records from May 2007 to October 2010 indicated that the Veteran continued to have low back pain and lower left extremity pain. He was not interested in surgical intervention. No pertinent clinical findings were recorded. On March 23, 2012, the Veteran requested reconsideration of the previously denied service connection claims for back and associated left lower extremity radiculopathy disabilities. As the Veteran submitted service treatment records that had not been previously considered in the original May 2007 service connection claims, the RO determined that the prior February 2008 rating decision denying the original claim was not final. 38 C.F.R. § 3.156(c). In June 2012, the Veteran underwent a VA back examination. The examiner diagnosed DJD, lumbar spine and lumbar radiculopathy. As relevant, the Veteran reported having chronic low back pain and left lower extremity radiculopathy. He stated that if he did not take his medication, he would develop left foot drag. Clinical evaluation showed lumbar spine forward flexion was to 60 degrees with pain throughout. Neurological evaluation revealed moderate radiculopathy symptoms in the left lower extremity. The Veteran contends that a 20 percent rating is warranted from the May 17, 2007 date of service connection for both DJD lumbar spine and left lower extremity radiculopathy. The RO assigned a March 23, 2012 effective date for the 20 percent rating because it found that there was no evidence warranting a compensable rating prior to this date, which was the date of the request for reconsideration. There was, however, such evidence. VA treatment records and a supporting physician’s statement from December 2006 and May 2007 confirmed that the Veteran experienced low back pain and associated left lower extremity radiculopathy symptoms when service connection was initially in effect. In Swain v. McDonald, 27 Vet. App. 219, 224 (2015), the Court held that an "'effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested" (citing DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011); Hazan v. Gober, 10 Vet. App. 511, 521 (1997) (noting that for increased ratings claims, section 5110(b)(2) requires VA to "review all the evidence of record")). Based on the above, the Board finds that from the May 17, 2007 date of service connection, the Veteran's lumbar spine symptoms more closely approximate lumbar spine limitation of motion to 60 degrees or less and his left lower extremity radiculopathy symptoms more nearly approximated moderate neuralgia of the external popliteal nerve. Moreover, there is no evidence that the Veteran’s lumbar spine and left lower extremity disability suddenly worsened when the Veteran filed the March 2012 request to reconsider the previously denied claims. Accordingly, separate 20 percent ratings for DJD, lumbar spine and lumbar radiculopathy of the left lower extremity are warranted from the May 17, 2007 effective date of service connection for these disabilities. As this a complete grant of the benefit sought on appeal, further discussion is unnecessary. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel