Citation Nr: 18142101 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 10-48 682 DATE: October 16, 2018 ORDER Entitlement to service connection for left lower extremity (LLE) radiculopathy as of December 26, 2007 is granted. REMANDED Entitlement to a rating in excess of 20 percent for service-connected right lower extremity (RLE) radiculopathy prior to March 26, 2008, and in excess of 40 percent thereafter, is remanded. Entitlement to a rating in excess of 10 percent for service-connected LLE radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT During the appeal period for the Veteran’s claim for an increased rating for his service-connected low back disability, the earliest evidence of LLE radiculopathy was at his December 26, 2007 VA examination. CONCLUSION OF LAW The criteria for service connection for LLE radiculopathy as of December 26, 2007 are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Navy from October 1963 to September 1967. A September 2016 Board decision denied a rating in excess of 20 percent for service-connected low back disability prior to March 26, 2008, denied a rating in excess of 40 percent thereafter, and remanded the issue of entitlement to a TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), but only to the extent of the Board’s evaluation of his RLE radiculopathy and LLE radiculopathy. The Veteran did not challenge the part of the decision denying an increased rating for his low back disability. In March 2018, the Court issued a decision that partially vacated the Board’s September 2016 decision and remanded the matters for readjudication. Entitlement to the grant of service connection for LLE radiculopathy prior to July 26, 2010 The Court found the September 2016 Board decision failed to adjudicate whether the Veteran was entitled to service connection for LLE radiculopathy prior to July 26, 2010. See March 2018 Memorandum decision. A September 2014 rating decision awarded service connection for LLE radiculopathy, effective July 26, 2010. The rating decision stated the Veteran reported radiating left leg pain during a July 26, 2010 VA examination and was later diagnosed with LLE radiculopathy at an August 2014 VA examination. Despite the Veteran not submitting a notice of disagreement in response to the September 2014 rating decision, the Board finds the issue of whether the Veteran is entitled to service connection for LLE radiculopathy prior to July 26, 2010 is part and parcel of his claim for an increased rating for his back disability. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Therefore, the Board should consider whether the Veteran is entitled to service connection for LLE radiculopathy at any earlier date during the appeal period for his claim for an increased rating for low back disability. The Board finds the appeal period for the Veteran’s claim for an increased rating for low back disability dates back to his initial November 21, 2005 claim. An August 2006 rating decision granted service connection for low back disability, effective November 21, 2005. The notification letter was dated August 12, 2006. VA received a statement from the Veteran on July 24, 2007, within a year of the rating decision notification letter, stating his back was worse than VA was claiming and requested re-evaluation. A February 2008 rating decision letter granted an increased rating for his low back disability from 10 percent to 20 percent. The Veteran perfected an appeal of this rating decision, which eventually led to the Board’s September 2016 decision. When looking at the appeal period for the Veteran’s claim for an increased rating for low back disability, the Board finds the earliest probative evidence of LLE radiculopathy symptoms was at his December 26, 2007 VA examination. The Veteran reported new radiating left leg pain. The physical examination showed Lasegue’s sign was present, indicating lumbar root or sciatic nerve irritation. This finding is consistent with the Veteran’s continued complaints of left leg pain after this examination and later diagnosis of LLE radiculopathy. The Veteran has not contended, nor does the Board find evidence to warrant, the grant of service connection for LLE radiculopathy prior to December 26, 2007. See June 2007 Appellant Brief. The Board considered a December 2005 private treatment visit that noted weakness in his lower extremities. The Board finds this treatment notation inconsistent with the physical examination at that visit, as well as treatment visits and statements following that visit. The December 2005 examination showed a positive straight leg test and atrophy of only the right leg. A May 2005 VA treatment visit noted only right leg pain. An August 2006 statement claimed service connection for only right leg pain. An April 2007 VA examination complained of only right leg pain and diagnosed right side radiculopathy. A September 2007 VA treatment visit denied LLE symptoms. Physical examination was unremarkable for the left leg. These finds are consistent with the December 2007 VA examination noting “left leg pain that he has never had before.” Resolving reasonable doubt in favor of the Veteran, the Board finds service connection for LLE radiculopathy as of December 26, 2007 is warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for service-connected RLE radiculopathy prior to March 26, 2008, and in excess of 40 percent thereafter 2. Entitlement to a rating in excess of 10 percent for service-connected LLE radiculopathy The Veteran contends he is entitled to separate compensable ratings for each lower extremity based on involvement of sciatic nerve and the femoral nerve. See June 2017 Appellant Brief. An August 2014 VA examination indicated bilateral extremity involvement of the femoral nerve and sciatic nerve. An examination opinion is necessary to determine whether the symptoms of femoral nerve and sciatic nerve involvement are separate and distinguishable, and if so, the severity of each. 3. Entitlement to a TDIU The issue of entitlement to a TDIU is intrinsically intertwined with the Veteran’s lower extremity radiculopathy increased rating claims. Therefore, this issue must also be remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to evaluate his bilateral lower extremity radiculopathy. The examiner should: (a.) Identify any nerve root involved with the Veteran’s bilateral lower extremity radiculopathy symptoms. The claims file has identified sciatic and femoral nerve root involvement. See August 2014 VA examination. If the examiner disagrees with these findings, an explanation must be provided. (b.) For each nerve root involved, opine on whether the symptoms are separate and distinguishable from the other nerve roots identified. Please provide as much detail as possible regarding the symptoms and severity for each nerve root involvement. The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel