Citation Nr: 18153104 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-21 472 DATE: November 27, 2018 ORDER The claim of entitlement to an effective date earlier than May 24, 2005, for the award of service connection for a back disability is denied. An effective date of November 30, 2010, for the grant of entitlement to service connection for right lower extremity radiculopathy, associated with the service-connected back disability, is granted. An effective date of November 30, 2010, for the grant of entitlement to service connection for left lower extremity radiculopathy, associated with the service-connected back disability, is granted. REMANDED The claim of entitlement to an initial disability rating in excess of 20 percent for a back disability prior to August 4, 2011, and in excess of 40 percent thereafter, is remanded. The claim of entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy, associated with the service-connected back disability, is remanded. The claim of entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy, associated with the service-connected back disability, is remanded. The claim of entitlement to an effective date earlier than August 4, 2011, for the award of entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is also remanded for additional development. FINDINGS OF FACT 1. The Veteran submitted a formal claim for service connection for a back disability on May 24, 2005. From this claim, service connection was granted for a back disability. It is not contended, and the evidence does not otherwise show that a formal or informal claim for service connection for a back disability was received prior to May 24, 2005. 2. Affording the Veteran the benefit of the doubt, the evidence of record shows that the service-connected back disability first manifested in radiculopathy of the right lower extremity and radiculopathy of the left lower extremity on November 30, 2010. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than May 24, 2005, for the grant of service connection for a back disability have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §S 3.155, 3.400. 2. The criteria for entitlement to an effective date of November 30, 2010, for the grant of service connection for right lower extremity radiculopathy, associated with the service-connected back disability, have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1(p), 3.400, 4.71a, Diagnostic Code 5243, Note (1). 3. The criteria for entitlement to an effective date of November 30, 2010, for the grant of service connection for left lower extremity radiculopathy, associated with the service-connected back disability, have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1(p), 3.400, 4.71a, Diagnostic Code 5243, Note (1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from March 1965 to March 1967. The Veteran received the Vietnam Service Medal and the Parachutist Badge, among other commendations. By way of background, the Veteran filed a claim for service connection for a back disability on May 24, 2005. In May 2011, the Board of Veterans’ Appeals (Board) granted service connection for a back disability. In a July 2011 rating decision, the local Regional Office (RO) effectuated the May 2011 Board decision, assigning an initial disability rating of 10 percent, effective as of May 24, 2005. In August 2011, the Veteran filed a notice of disagreement (NOD), appealing both the initial evaluation of his service-connected back disability and the effective date assigned for the award of service connection. In November 2011, the Veteran, through his representative, withdrew his August 2011 NOD. On the same day, the RO issued a rating decision in which the Veteran’s service-connected back disability was increased from 10 percent to 40 percent, effective as of August 4, 2011. Then, in a July 2012 correspondence, the Veteran, through his representative, indicated that he was reinstating the August 2011 NOD which had been withdrawn in November 2011. As the July 2012 correspondence was submitted within one year of the initial July 2011 rating decision granting service connection, the Board finds that the initial disability rating assigned for the Veteran’s back disability remains on appeal. During the pendency of the appeal, in a March 2016 rating decision, the RO increased the initial evaluation of the Veteran’s back disability from 10 percent to 20 percent. In addition, the RO continued the 40 percent disability rating assigned from August 4, 2011. When a Veteran seeks an increased rating, it is generally presumed that the maximum benefit allowed is sought, and a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Based on the foregoing procedural history of the Veteran’s back disability claim, the issue has been restated accordingly on the title page. Claims for Earlier Effective Dates for Service Connection Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). A “claim” includes a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). A formal claim is a specific claim in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Also, as applicable to the claims on appeal (filed prior to a change in applicable regulation), any communication or action indicating the intent to apply for a benefit under the laws administered by VA may be considered an informal claim, provided that it identifies generally, although not necessarily with specificity, the benefit sought. 38 C.F.R. §§ 3.1(p), 3.155. Medical records cannot constitute an initial claim for service connection; rather there must be some intent by the claimant to apply for the benefit. Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). The Veteran contends that he is entitled to earlier effective dates for the awards of service connection for a back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy. 1. Entitlement to an effective date earlier than May 24, 2005, for the grant of service connection for a back disability The Veteran has been granted service connection for a back disability, effective as of May 24, 2005. The Veteran submitted a claim of entitlement to service connection for a back disability on May 24, 2005. There is no earlier formal or informal claim or request to file a claim for this disability, and no contention of such. Hence, the appropriate effective date for service connection for a back disability is the date of receipt of the claim, which is May 24, 2005. 38 C.F.R. § 3.400. In the absence of dispute as to pertinent facts, this claim for an earlier effective date for service connection for a back disability must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to an effective date earlier than August 4, 2011, for the grant of service connection for radiculopathy of the right lower extremity and radiculopathy of the left lower extremity The Veteran seeks entitlement to an effective date earlier than August 4, 2011, for the grant of entitlement to service connection for radiculopathy of the right and left lower extremities. In this case, entitlement to service connection for radiculopathy of the right and left lower extremities was granted as part of the Veteran’s appeal for entitlement to a higher initial rating for a back disability under 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1), which provides that any objective neurologic abnormalities be evaluated along with a service-connected disability of the spine. The Veteran does not contend, and the record does not show, that a claim for entitlement to service connection for radiculopathy of the right or left lower extremity was received prior to receipt of the claim of entitlement to service connection for a back disability. Therefore, the earliest date on which service connection may be granted for radiculopathy of the right or left lower extremity is May 24, 2005, the date the claim of entitlement to service connection for the underlying back disability was received. Here, the Veteran has been awarded service connection for radiculopathy of the right and left lower extremities, effective as of August 4, 2011, the date of a VA examination which initially diagnosed the Veteran with bilateral lower extremity radiculopathy, secondary to the service-connected back disability. Turning to the relevant evidence of record, a VA treatment record dated December 20, 2007, notes that the Veteran complained of back pain and tingling in his calves and inner feet, bilaterally, upon exertion. He denied weakness or numbness. The examiner noted his belief that the Veteran did not have radiculopathy. A VA treatment record dated October 27, 2009, notes that the Veteran was seen by a neurosurgeon in February 2008, at which time no radicular symptoms were noted. A VA treatment record dated November 30, 2010, shows that the Veteran reported experiencing severe pain radiating down his legs. He further reported that the pain became so severe that he almost went to the emergency room for treatment. The examiner noted that the Veteran appeared to be experiencing a new onset of radicular symptoms. The Board finds that the medical evidence shows that prior to the August 2011 VA examination, the Veteran experienced radicular symptoms, secondary to his service-connected back disability. As such, the Veteran’s demonstrated radicular symptoms of his bilateral lower extremities, as a part of his back disability, merit an earlier effective date. Although a specific diagnosis of bilateral lower extremity radiculopathy is not in the record prior to the August 2011 VA examination, the medical evidence indicates that the Veteran experienced radicular symptoms of his bilateral lower extremities as manifestations of his service-connected back disability prior to the examination. Affording the Veteran the benefit of the doubt, the Board finds that the November 30, 2010, treatment note indicates that the Veteran’s service-connected back disability manifested in radiculopathy of the right and left lower extremities. As such, the Board concludes that the Veteran is entitled to service connection for radiculopathy of the right and left lower extremities from that date, as it is the earliest dated relevant evidence of record that may reasonably be interpreted as showing that the Veteran had radiculopathy of the right and left lower extremities. In summary, the Board finds that an effective date of November 30, 2010, and no earlier, is warranted for the grant of service connection for radiculopathy of the right lower extremity and radiculopathy of the left lower extremity. To the extent that the Veteran seeks even earlier effective dates, the preponderance of the evidence is against the appeal, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Increased Rating Claims The Veteran contends that he is entitled to increased ratings for his service-connected back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy. The record reflects that the Veteran was most recently afforded a VA examination to assess the severity of these service-connected disabilities in January 2012, over six years ago. VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). When a claimant alleges that his or her service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In April 2014, the Veteran’s representative submitted a brief, indicating that the Veteran’s service-connected back disability had worsened. As the Veteran’s service-connected bilateral lower extremity radiculopathy is a manifestation of his back disability, the Board finds that the worsening of the back disability also encompasses the Veteran’s radiculopathy of the right and left lower extremities. Thus, given the length of time since the last examination, the Board finds that a more contemporaneous examination is needed in order to adequately consider the current severity of the Veteran’s service-connected back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy. See 38 C.F.R. § 3.327; Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, with specific regard to the back disability, the Veteran was afforded a VA examination in May 2009, August 2011, and in January 2012. The Board notes that since these examinations, two precedential opinions have been issued by the United States Court of Appeals for Veterans Claims (Court). These opinions necessitate retroactive opinions in this case. On July 5, 2016, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia interprets 38 C.F.R. § 4.59 to establish additional requirements that must be met prior to finding that a VA examination is adequate. A review of the claims file reveals that the previous VA examination reports include only active range of motion findings and do not include range of motion findings for passive range of motion. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a retroactive opinion is warranted. Furthermore, the Court issued another decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare (i.e., the frequency, duration, characteristics, severity, or functional loss), and such opinion cannot be based on the insufficient knowledge of the specific examiner. In this case, during the previous VA examinations, the Veteran reported experiencing flare-ups of the back; however, none of the examination reports provide an opinion as to whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups. Therefore, a retroactive opinion to address limitation of motion during flare-ups is warranted in light of Sharp. Thus, in light of the foregoing reasons, the Board finds that a new examination is warranted to assess the current severity of the Veteran’s back, right lower extremity radiculopathy, and left lower extremity radiculopathy – to include retroactive opinions for the Veteran’s back disability in light of Correia and Sharp. Entitlement to TDIU, prior to August 4, 2011 The Veteran contends that an effective date earlier than August 4, 2011, is warranted for the award of his TDIU. Under the applicable criteria, a total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board notes that the Veteran was initially eligible for schedular TDIU consideration from August 4, 2011, as he had a single disability rating at 60 percent, as his back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy are considered as one disability as resulting from common etiology under 38 C.F.R. § 4.16(a)(2). Prior to August 4, 2011, the record reflects that the Veteran does not meet the schedular criteria for a TDIU. However, there is considerable evidence showing that the Veteran’s service-connected disabilities precluded employment prior to August 4, 2011. The Board has no authority to award a TDIU under § 4.16(b) in the first instance. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The claim must therefore be remanded so that the issue of entitlement to a TDIU under § 4.16(b) can be referred to the Director of the Compensation Service for extraschedular consideration in the first instance. Finally, on remand, the Agency of Original Jurisdiction (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected back disability, to include his bilateral lower extremity radiculopathy. A separate examination for the Veteran’s bilateral lower extremity radiculopathy need not be conducted unless deemed necessary by the examiner assigned to this case. All necessary tests and studies, to include X-rays and range of motion studies, should be completed, and all clinical findings reported in detail. (a) The examiner must determine the current severity of the Veteran’s back disability, right lower extremity radiculopathy, and left lower extremity radiculopathy. (b) Conduct range of motion testing of the Veteran’s lumbar spine, expressed in degrees in active motion, passive motion, weight-bearing, and nonweight-bearing (where applicable). The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts he is unable to perform range of motion testing due to pain. Determine whether the Veteran’s range of motion results from the May 2009, August 2011, and January 2012 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner’s best ability, the additional range of motion loss should be described in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. (c) Render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination associated with the lumbar spine. If pain on motion is observed, the VA examiner should indicate the point at which pain begins. (d) Significantly, the VA examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his lumbar spine due to pain or any of the other symptoms during flare-ups or with repeated use. To the extent possible, the VA examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. (e) After completion of the above, the examiner must specifically interview the Veteran about the nature of the flare-ups that he reported in the May 2009, August 2011, and January 2012 VA examinations as resulting in back pain; assess this impairment during flare-ups, and provide a retroactive opinion as to any additional functional loss during flare-ups at that time, and provide an estimate of that loss in terms of degrees reduction in range of motion. The provisos of sections (c) and (d) above apply equally to this instruction (e). A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Refer the issue of entitlement to a TDIU prior to August 4, 2011, to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). (CONTINUED ON NEXT PAGE) 4. After completing all indicated development, the Veteran’s claims should be readjudicated, to include the issue of entitlement to a TDIU prior to August 4, 2011, based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel