Citation Nr: 18143785 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-08 424 DATE: October 23, 2018 ORDER Service connection for a headache disorder is denied. Service connection for insomnia (claimed as a sleeping disorder) is denied. An effective date earlier than May 6, 2014 for an increased 40 percent disability rating for radiculopathy in the left lower extremity is denied. An increased rating for left lower extremity radiculopathy in excess of 40 percent is denied. An increased rating for degenerative arthritis of the lumbar spine (lumbar spine disability) in excess of 40 percent is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not have a current headache disability. 2. The Veteran is currently diagnosed with insomnia; the current insomnia is not etiologically related to active service. 3. VA received a request for an increased disability rating for the service-connected lumbar spine disability on May 6, 2014; there is no evidence of any communication in the claims file prior to May 6, 2014 indicating intent to file a claim for an increased rating for left lower extremity radiculopathy, and; it is not factually ascertainable that the service-connected left lower extremity radiculopathy increased in severity to warrant a 40 percent disability rating prior to May 6, 2014. 4. Throughout the rating period on appeal from May 6, 2014, the left lower extremity radiculopathy has been manifested by moderate constant pain, severe intermittent pain, paresthesias, and numbness, without muscular atrophy, more nearly approximating moderately severe incomplete paralysis of the sciatic nerve. 5. For the rating period on appeal from May 6, 2014, forward, the service-connected lumbar disability has not been manifested by ankylosis of the thoracolumbar spine and/or incapacitating episodes with a total duration of at least six weeks during a 12 month period. CONCLUSIONS OF LAW 1. The criteria for service connection for a headache disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for insomnia have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. The criteria for an effective date earlier than May 6, 2014 for a 40 percent rating for the service-connected left lower extremity radiculopathy have not been met. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). 4. For the entire rating period on appeal from May 6, 2014, the criteria for an increased disability rating in excess of 40 percent for the service-connected left lower extremity radiculopathy have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8520. 5. For the entire rating period on appeal from May 6, 2014, the criteria for an increased disability rating in excess of 40 percent for the service-connected lumbar spine disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from August 2002 to March 2003. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Veteran currently has insomnia, which is not a “chronic disease” under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in-service symptoms and “continuous” post service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Service connection for a headache disorder The Veteran generally contends that service connection for a headache disorder is warranted. See May 2014 Claim. After a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a currently diagnosed headache disability. VA treatment records throughout the relevant claim period on appeal reflects a single complaint of headaches during a July 2014 visit. A July 2014 VA treatment record shows the Veteran complained of chronic lower back pain radiating down the left leg, insomnia, and headaches; the Veteran was not diagnosed with a headache disorder at that time. Other than the July 2014 VA treatment records, other VA treatment records throughout the relevant claim period on appeal also do not reflect any complaints, treatment, or diagnosis for headaches or a headache disorder. Because the weight of the evidence demonstrates the Veteran is not currently diagnosed with a headache disorder, the claim for service connection for a headache disorder must be denied. 2. Service connection for insomnia, claimed as a sleeping disorder The Veteran generally asserts that service connection for a sleeping disorder is warranted. See May 2014 Claim. At the outset, the Board finds that the Veteran is currently diagnosed with insomnia; VA treatment records throughout the claims period on appeal reflect a current diagnosis for insomnia. After a review of all the lay and medical evidence, the Board finds that the current insomnia did not have its onset during service and is not etiologically related to active service. Service treatment records do not reflect any complaints, symptoms, diagnosis, or treatment for insomnia or any other sleeping disorder during service. A February 2003 service treatment record shows the Veteran denied a history of frequent trouble sleeping during a February 2003 service separation examination. Additionally, the record does not contain any competent medical opinion establishing a nexus between the current insomnia and active service. For these reasons, the Board finds that the criteria for service connection for insomnia have not been met. 3. An effective date earlier than May 6, 2014 for a 40 percent rating for radiculopathy in the left lower extremity In this case, the Board finds that an earlier effective date for the 40 percent disability rating for left lower extremity radiculopathy is not warranted. In a November 2007 rating decision, the RO denied an increased disability rating in excess of 10 percent for the service-connected left lower extremity radiculopathy. The Veteran submitted a Notice of Disagreement in June 2008. In an October 2008 Statement of the Case, an increased rating in excess of 10 percent for left lower extremity radiculopathy was once again denied. Because the Veteran did not submit a substantive appeal to the October 2008 Statement of the Case, the November 2007 rating decision became final. Because the November 2007 rating decision became final, the effective date for an increased rating in this case is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). In general, “date of receipt” means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). On May 6, 2014, the Veteran submitted a VA Form 21-526EZ, claiming service connection for back conditions, which the RO treated as a claim for an increased rating for the service-connected lumbar spine disability, to include the service-connected left lower extremity (lumbar) radiculopathy. In an August 2014 rating decision, the RO assigned a 40 percent rating for the service-connected left lower extremity radiculopathy, effective May 6, 2014, the date of claim. The Veteran generally appealed for an earlier effective date. See November 2014 Notice of Disagreement. The Board finds that May 6, 2014, is the earliest possible effective date for the grant of the 40 percent rating for the service-connected left lower extremity radiculopathy because this is the date of receipt of claim for increased rating. Additionally, the weight of the evidence does not establish a factually ascertainably increase in the Veteran’s left lower extremity radiculopathy within one year prior to May 6, 2014. Consequently, the claim for an effective date earlier than May 6, 2014, must be denied. Disability Rating Legal Authority Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Consideration is to be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. Painful motion is an important factor of disability, and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 4. An increased rating for left lower extremity radiculopathy The Veteran generally contends that a higher initial disability rating than 40 percent is warranted for the service connected left lower extremity radiculopathy. See November 2014 Notice of Disagreement. For the entire initial rating period from May 6, 2014, the left lower extremity radiculopathy has been rated at 40 percent disabling under the criteria at 38 C.F.R. § 4.124a, Diagnostic Code 8520, for moderately severe incomplete paralysis of the sciatic nerve. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124(a). 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. When the involvement is wholly sensory, the rating should be for the mild or at most, the moderate degree. See 38 C.F.R. § 4.124a. After review of the lay and medical evidence of record, the Board finds the weight of the evidence is against finding that the Veteran’s left lower extremity radiculopathy more nearly approximates severe incomplete paralysis of the sciatic nerve with marked muscular atrophy, so as to warrant an increased 60 percent rating for the entire rating period from May 6, 2014. The Veteran underwent a VA examination for back conditions in July 2014, the examination report for which reflects positive findings for left lower extremity radiculopathy associated with the service-connected degenerative joint disease and degenerative disc disease of the lumbar spine. The July 2014 VA examiner noted the left lower extremity radiculopathy has manifested in symptoms of moderate constant pain, severe intermittent pain, paresthesias, and numbness in the left lower extremity involving the sciatic nerve. The VA examiner found no other signs or symptoms of radiculopathy. Furthermore, the July 2014 VA examination report shows muscle strength testing in the left lower extremity was measured to 4/5 in all fields tested, and notes negative findings for muscle atrophy. VA treatment records throughout the rating period on appeal similarly do not reflect any findings for marked muscular atrophy in left lower extremity (criteria for a 60 percent rating). Based on the foregoing, the Board finds that the weight of the lay and medical evidence of record demonstrates that the Veteran’s left lower extremity radiculopathy has not more nearly approximated the criteria for a 60 percent rating under Diagnostic Code 8520 for symptoms of severe incomplete paralysis of the sciatic nerve for any part of the increased rating period from May 6, 2014; therefore, an increased disability rating in excess of 40 percent is not warranted under Diagnostic Code 8520 for the left lower extremity radiculopathy. 38 C.F.R. §§ 4.3, 4.7. 5. An increased rating for the lumbar spine disability The Veteran is in receipt of a 40 percent disability rating for the lumbar spine disability from May 6, 2014 under the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Veteran generally contends that an increased disability rating for the lumbar spine disability is warranted. See November 2014 Notice of Disagreement. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula are made 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. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 lumbar 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. Note (3) provides that, in exceptional cases, an examiner may state, that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher rating for that segment. The Board finds that, for the entire rating period from May 6, 2014, the criteria for an increased disability rating in excess of 40 percent for the lumbar spine disability have not been met or more nearly approximated. A July 2014 VA examination report reflects negative findings for ankylosis in the thoracolumbar spine and incapacitating episodes over the past 12 months. Additionally, VA treatment records throughout the rating period on appeal also do not indicate unfavorable ankylosis of the entire thoracolumbar spine (criteria for a 50 percent rating), or that the Veteran has experienced incapacitating episodes having a total duration of at least 6 weeks during a 12 month period (criteria for a 60 percent rating). Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of an increased disability rating for the lumbar spine disability in excess of 40 percent for the entire rating period from May 6, 2014. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. A claim for a TDIU is part of a rating issue when such claim is raised by the record or the Veteran during the rating period. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran’s service-connected disabilities are a lumbar spine disability rated as 40 percent disabling and left lower extremity radiculopathy rated as 40 percent disabling. In a statement dated January 2017, the Veteran submitted evidence and arguments that he has been unable to work due to the lumbar spine disability and left lower extremity radiculopathy. The Veteran also argues that the lumbar spine disability and left lower extremity radiculopathy have aggravated his anxiety disorder. The record reflects that the RO is currently developing the claim for service connection for an acquired psychiatric disorder. The Board finds that the evidence has reasonably raised a claim for a TDIU in conjunction with the increased rating issues decided herein; however, a remand is required prior to adjudication of the claim for a TDIU because the Veteran has not been provided adequate VCAA notice regarding substantiation of TDIU, nor has the Agency of Original Jurisdiction (AOJ) adjudicated TDIU in the first instance. The matter is REMANDED for the following action: 1. The AOJ should send the Veteran VCAA notice that addresses a claim for a TDIU. 2. After all available evidence has been associated with the record, the AOJ should review the evidence and determine if further development is warranted for TDIU. The AOJ should take any additional development as deemed necessary. 3. After all development has been completed, the AOJ should adjudicate the issue of entitlement to a TDIU based on the evidence of record. If any aspect of the appeal remains denied, provide the Veteran and representative with a supplemental statement of the case. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel