Citation Nr: 18148935 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 14-39 126 DATE: November 9, 2018 ORDER An effective date earlier than March 16, 2012 for the award of service connection for lumbosacral spondylosis (back disability) is denied. Prior to June 5, 2018, a rating of 20 percent, but no higher, for a back disability is granted. From June 5, 2018, a rating of 40 percent, but no higher, for a back disability is granted. From March 16, 2012, a rating of 20 percent, but no higher, for moderate right lower extremity radiculopathy associated with the back disability is granted. From March 16, 2012, a rating of 20 percent, but no higher, for moderate left lower extremity radiculopathy associated with the back disability is granted. FINDINGS OF FACT 1. A July 2001 rating decision denied the Veteran’s claim for service connection for mechanical lower back pain. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. On March 16, 2012, the Veteran filed a claim to re-open his previously-denied claim for service connection for mechanical lower back pain. 3. Between the issuance of the July 2001 rating decision and March 16, 2012, the Veteran did not request that the RO re-open his previously-denied claim for service connection for mechanical lower back pain, or file a claim that can be reasonably construed as a request to re-open his previously-denied claim for service connection for mechanical lower back pain. 4. Prior to June 5, 2018, the Veteran’s back disability was productive of functional limitations with muscle spasm and guarding severe enough to result in an abnormal gait; but not forward flexion of the thoracolumbar spine limited to 30 degrees or less, ankylosis, incapacitating episodes requiring physician-prescribed bed rest totaling at least four weeks any twelve-month period therein, or associated neurological bowel or bladder abnormalities. 5. From June 5, 2018, the Veteran’s back disability has been productive of functional limitations with forward flexion of the thoracolumbar spine limited to 30 degrees or less; but not ankylosis, incapacitating episodes requiring physician-prescribed bed rest totaling at least six weeks in the last twelve months, or associated neurological bowel or bladder abnormalities. 6. For the entire appeal period, the Veteran’s bilateral lower extremity radiculopathy has been manifested by moderate incomplete paralysis affecting the sciatic nerve. CONCLUSIONS OF LAW 1. The July 2001 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for an effective date earlier than March 16, 2012 for the award of service connection for a back disability are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.156, 3.157 (as in effect prior to March 24, 2015), 3.400. 3. Prior to June 5, 2018, the criteria for a 20 percent rating, but no higher, for a back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. 4. From June 5, 2018, the criteria for a 40 percent rating, but no higher, for a back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5243. 5. From March 16, 2012, the criteria for a 20 percent rating, but no higher, for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, DC 5243, 4.124a, DC 8520. 6. From March 16, 2012, the criteria for a 20 percent rating, but no higher, for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, DC 5243, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1997 to July 2001, with additional National Guard service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified before the undersigned Veterans Law Judge. 1. An effective date earlier than March 16, 2012 for the award of service connection for a back disability is denied. The Veteran seeks an effective date earlier than March 16, 2012, for the award of service connection for a back disability. He asserts that he has experienced lower back pain since active duty and therefore is entitled to an effective date of August 1, 2001. See October 2012 Notice of Disagreement. Unless specifically provided otherwise, the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.156(b), if new and material evidence is received prior to the expiration of an appeal period, that evidence may be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period” that prevents an initial determination from becoming final. 38 C.F.R. § 3.156(b); see also 38 C.F.R. § 3.400(q) (providing that, as to new and material evidence received within appeal period, the “effective date will be as though the former decision had not been rendered”). Under certain circumstances, VA adjudicators may be presumed to be in constructive receipt of records not actually in their possession sufficient to warrant consideration of a veteran’s claim under 38 C.F.R. § 3.156(b), such as where VA adjudicators have sufficient knowledge of the existence of VA treatment records. See Turner v. Shulkin, 29 Vet. App. 207 (2018); cf. Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that the Secretary of the VA had constructive knowledge of certain VA-generated documents sufficient to permit appellate consideration of such documents pursuant to 38 U.S.C. § 7252(b)). On March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sep. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015 and thus are inapplicable to this case. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). Here, the RO received the Veteran’s claim for entitlement to service connection for mechanical lower back pain as of July 23, 2001, the day after his separation. In a July 2001 rating decision, the RO denied that claim, and the Veteran did not appeal that decision or submit any evidence within one year of the issuance of that decision. The Veteran was subsequently granted service connection for a back disability in a September 2012 rating decision, effective March 16, 2012, the date that VA received his request to re-open his claim for service connection for mechanical lower back pain. The Board finds that no evidence was received by VA prior to the expiration of the one-year appeal period that would prevent the July 2001 rating decision from becoming final. Specifically, the Board finds that the only evidence received within one year of the issuance of the July 2001 rating decision was the Veteran’s DD Form 214, and that document did not constitute “new and material” evidence, as it did not relate to an unestablished fact necessary to substantiate the Veteran’s claim. In this regard, the Board observes that the July 2001 rating decision states that the Veteran reported daily lower back pain as of May 2001, as well as a history of lower back pain beginning in 1997, and that he received multiple treatments for complaints of lower back pain in service; however, the rating decision denied his claim due to the absence of a diagnosed low back condition. See July 2001 Rating Decision. The Board finds that the July 2001 rating decision implicitly concedes that the Veteran experienced an in-service injury, and that his then-present symptom of daily lower back pain was related to that injury; thus, the only criterion for service connection for a low back disability that the Veteran had not met when the July 2001 rating decision was issued was the requirement that a lower back disability be present. Cf. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (service connection generally requires evidence showing (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury). Thus, the Veteran’s DD Form 214 was not material evidence, as that document does not relate to competent medical evidence that could evidence the existence of a present and diagnosed lower back disability, i.e., the type of unestablished fact necessary to substantiate the Veteran’s claim. See 38 C.F.R. § 3.156(b). The Board acknowledges that the Veteran asserts that he is entitled to service connection effective August 1, 2001. The Board has carefully reviewed the record, and finds that prior to March 16, 2012, the Veteran did not file a request to re-open his claim for service connection for mechanical lower back pain, a claim that can be reasonably construed as a request to re-open his claim for service connection for mechanical lower back pain, or indicate his intent to file a request to re-open his claim for service connection for mechanical lower back pain. In this regard, any records reflecting treatment of a back disability dated between 2001 and 2012 cannot be construed as a claim to reopen his previously denied service connection claim. 38 C.F.R. § 3.157 (as in effect prior to March 24, 2015). While the Veteran has competently and credibly reported his symptoms, the Board is obliged to follow the law and regulations governing the assignment of effective dates and the finality of decisions. Consequently, the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply, and an effective date prior to March 16, 2012 is not warranted. 2. Prior to June 5, 2018, a rating of 20 percent, but no higher, for a back disability is granted. 3. From June 5, 2018, a rating of 40 percent, but no higher, for a back disability is granted. 4. From March 16, 2012, a rating of 20 percent, but no higher, for right lower extremity radiculopathy associated with the back disability is granted. 5. From March 16, 2012, a rating of 20 percent, but no higher, for left lower extremity radiculopathy associated with the back disability is granted. The Veteran seeks an increased initial rating for his service-connected back disability, and asserts that he is entitled to a rating of 20 percent based on muscle spasms and guarding productive of an abnormal gait, a rating of 60 percent based on incapacitating episodes, and compensation for decreased sensation in his upper thighs. See September 2014 VA Form 9. He is in receipt of a 10 percent rating for his back disability since March 26, 2012, the effective date of service connection. As the Veteran disagreed with his initial rating, the period on appeal is from the effective date of service connection. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). However, in Johnston v. Brown, 10 Vet. App. 80 (1997), the United States Court of Appeals for Veterans Claims determined that if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and § 4.45 are applicable. The Veteran’s back disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Pursuant to the General Formula, a 20 percent disability rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5243. Any associated objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. See General Formula, Note (1). Under DC 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating, moderate incomplete paralysis of the sciatic nerve warrants a 20 percent rating and moderately severe incomplete paralysis of the sciatic nerve warrants a 40 percent rating. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscle atrophy. A maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. It is noted that the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. The Veteran’s back disability may alternately be rated under Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DC 5243. Under the IVDS Formula, a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted where there are incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. For these purposes, an incapacitating episode is defined as 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. See IVDS Formula, Note (1). After review of the medical and lay evidence of record, the Board finds that the Veteran’s back disability is productive of limitations warranting a 20 percent rating prior to June 5, 2018, and a 40 percent rating thereafter, as well as separate 20 percent ratings for bilateral lower extremity radiculopathy for the entire appeal period. The Veteran presented for a VA examination in August 2012. The examiner diagnosed the Veteran with L4-L5 spondylosis and left foraminal disc herniation, L5-S1 spondylosis and central disc herniation, and spinal stenosis. The examiner noted the Veteran’s report that he took numerous pain medications, including narcotics, and that following the development of tingling in his legs he previously underwent radiofrequency ablation. At the examination, the Veteran reported daily low back pain around the waist and into his legs, tingling down to his toes, and that he had difficulty walking at times and carrying his child and had to limit his activities. The Veteran reported flare-ups described as an inability to walk at times. See August 2012 VA Examination Report. Testing showed normal range of motion, with pain accompanying most motions at the endpoints motion, except for lumbar extension which was limited to 25 degrees, with painful motion beginning at that point. Motion was not decreased following repetitive testing. The examiner noted functional loss caused by less movement than normal, pain on movement, and interference with sitting, standing and/or weight-bearing. The examiner reported pain on palpitation of the midline of the L4-5 vertebrae, and noted guarding and/or muscle spasms not resulting in an abnormal gait or spinal contour. Muscle strength testing, reflex testing, and a sensory exam were all normal, and straight leg raising test results were negative. The examiner noted moderate radicular symptoms in the bilateral lower extremities, characterized as intermittent pain and paresthesias or dysesthesias. The examiner did not note any other neurological abnormalities, nor any incapacitating episodes over the prior 12 months due to IVDS. He noted the Veteran’s occasional use of a back belt, reported that the Veteran’s symptoms had caused him to call out of work at times, and remarked that while the Veteran’s bilateral lower extremity pain and tingling were most likely due to radiculitis secondary to his lumbar spinal pathology, there was no objective evidence of radiculopathy at the examination. See August 2012 VA Examination Report. The Veteran testified before the undersigned at a June 5, 2018 Board hearing. He reported that his back disability had worsened since his August 2012 examination. See Hearing Transcript at 2. The Veteran stated that he was using a back brace and a TENS unit, reported neurological symptoms in both legs and daily back spasms, and stated that while he tried to avoid taking narcotics his pain had increased to a point where he had resumed taking them. Id. at 4-6. He reported that his symptoms limited his day-to-day activities, prevented him from going to work at times, and that he changed his work schedule and used sick days so that he had long weekends where he could recuperate. Id. at 6. The Veteran reported that about every month and a half, he has an incapacitating attack of symptoms where he cannot get out of bed for “two or three days[,] easily.” Id. at 7. He stated that while he had not reported incapacitating episodes at his August 2012 examination, he had been taught to “suck it up and drive on” and that he had been younger at that time and “just dealt with it.” Id. at 8. In July 2018, the Veteran submitted a VA-promulgated disability benefits questionnaire (DBQ) completed by a private physician shortly after the Board hearing. The physician noted the Veteran’s diagnosis of L4-L5 and L5-S1 spondylosis with herniation, and among other accompanying diagnoses noted radiculopathy, IVDS, and mechanical back pain. The physician noted limited thoracolumbar range of motion, including forward flexion limited to 20 degrees. The physician reported that the Veteran could not perform repetitive testing due to instability, muscle spasms, and abnormal gait and posture, and that the Veteran was grimacing and needed to sit and rest. The physician indicated that the Veteran had an abnormal gait and spinal contour due to muscle spasms and guarding, and reported that the Veteran’s back disability was productive of functional loss due to less movement that normal, incoordination, pain on movement, and interference with sitting and standing. The physician estimated that during flare-ups the Veteran’s range of motion would be further reduced, but that he would still have some forward flexion and bilateral lateral flexion. The physician stated that ankylosis was not present, that the Veteran had reduced bilateral hip flexion muscle strength 3/5 and bilateral knee flexion muscle strength 4/5, but no muscle atrophy or abnormal reflexes. The physician reported decreased touch sensation in the bilateral lower thigh, lower legs, feet, and right upper thigh, but normal position sense. The physician noted the Veteran’s report of severe constant pain, intermittent pain, dull pain, and moderate paresthesias/dysesthesias and numbness, and indicated that the Veteran had “severe” bilateral lower extremity radiculopathy, and that no other objective neurologic abnormalities were present. The physician also noted that the Veteran had incapacitating IVDS episodes of at least 4 weeks but less than 6 weeks in the previous 12 months. See July 2018 Private DBQ. The August 2012 VA examination findings support a 20 percent rating for the Veteran’s back disability prior to June 5, 2018, as the examiner reported the Veteran’s muscle spasms and or guarding, and the Veteran competently and credibly reported that he could not walk during his flare-ups at the examination and reported his abnormal gait due to spasms and guarding in his October 2012 NOD. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, the Board finds that the Veteran’s symptoms more closely approximate the criteria for a 20 percent rating, including muscle spasm or guarding severe enough to result in abnormal gait. See 38 C.F.R. § 4.71a, General Formula. The Veteran is not entitled to a higher rating prior to June 5, 2018. While the August 2012 examination report does not include all the testing indicated in Correia v. McDonald, 28 Vet. App. 158 (2016), the Board observes that the examiner only recorded slight range of motion limitation at that examination, and nothing in the record (including the Veteran’s statements) suggest that the Veteran’s symptoms more closely approximated the criteria for a rating of 40 percent under the General Formula in August 2012. Moreover, the Veteran did not demonstrate ankylosis, which is required for a rating in excess of 40 percent. The Veteran is also not entitled to a higher rating under the IVDS Formula, as there is no evidence of record that he was experiencing incapacitating episodes requiring physician-prescribed bed rest at that time. See 38 C.F.R. § 4.71a, IVDS Formula. The Board finds that from June 5, 2018, the Veteran’s back disability is productive of symptoms warranting a rating of 40 percent under the General Formula. The Veteran reported increased symptoms at his Board hearing on that date, and the July 2018 DBQ indicates that his thoracolumbar forward flexion was limited to 30 degrees or less. The Veteran is not entitled to a higher rating, even when taking into account the DeLuca factors, as 40 percent is the highest rating available based on limitation of motion. See Johnston, 10 Vet. App. 80. Moreover, he is not entitled to a higher rating without a showing of ankylosis, which he does not have, and neither the July 2018 DBQ nor the Veteran’s reports of his incapacitating episodes at the Board hearing support a rating of 60 percent under the IVDS Formula, which requires incapacitating episodes totalling at least 6 weeks in the past 12 months. While the July 2018 DBQ was not submitted to VA until July 13, 2018, the Board observes that the physician indicated that the examination occurred on June 11, 2018, only six days after the Veteran’s report at the Board hearing that his symptoms had increased since the August 2012 examination, and the symptoms noted by the physician are consistent with his testimony at the June 5 Board hearing. Accordingly, and after resolving reasonable doubt in favor of the Veteran, the Board concludes that a 40 percent rating is warranted from June 5, 2018. Regarding neurological manifestations, given the evidence of moderate wholly sensory symptoms throughout the appeal period, separate 20 percent ratings are warranted under DC 8520 for radiculopathy of both lower extremities. In this regard, the Board acknowledges the more recent examiner’s characterization of the Veteran’s bilateral radiculopathy as “severe;” however, a higher, 40 percent rating under DC 8520 requires marked muscle atrophy in addition to severe symptomatology, which is not present in this case, as both examiners specifically indicated no muscle atrophy was present. Instead, the evidence reflects wholly sensory symptoms consistent with the 20 percent ratings assigned herein. There is no evidence of any other neurological complications associated with the back disability. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel