Citation Nr: 18158997 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 06-06 701 DATE: December 18, 2018 ORDER Entitlement to an increased rating in excess of 40 percent for lumbosacral strain is denied. Entitlement to a separate compensable rating for radiculopathy, right lower extremity, prior to October 27, 2005, as a neurological manifestation of the Veteran’s service-connected lumbosacral strain is denied. Entitlement to a separate compensable rating for radiculopathy, left lower extremity, prior to November 1, 2004, as a neurological manifestation of the Veteran’s service-connected lumbosacral strain is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 11, 2015 is denied. FINDINGS OF FACT 1. The Veteran’s lumbosacral strain is manifested, at worst, by forward flexion to 35 degrees. There is no evidence of ankylosis. 2. The Veteran has a diagnosis of intervertebral disc syndrome (IVDS); however, at no time during the claim period was he prescribed bed rest for acute signs and symptoms of his IVDS. 3. On October 27, 2005, it was factually ascertainable that a separate compensable rating for right lower extremity radiculopathy, a neurological manifestation of the Veteran’s service-connected lumbosacral strain was warranted. 4. The Veteran filed a claim for an increased rating for his lumbosacral strain on November 1, 2004; there are no pending claims for an increased rating or unresolved claims, formal or informal for this issue prior to this date. 5. The record includes no pending claims for increased ratings or unresolved claims, whether formal or informal, for TDIU prior to February 11, 2015. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 40 percent for lumbosacral strain have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5237 (2017). 2. The criteria for entitlement to a separate compensable rating for radiculopathy, right lower extremity, prior to October 27, 2005, as a neurological manifestation of the Veteran’s service-connected lumbosacral strain have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. The criteria for entitlement to a separate compensable rating for radiculopathy, left lower extremity, prior to November 1, 2004, as a neurological manifestation of the Veteran’s service-connected lumbosacral strain have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 4. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 11, 2015, have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.155(a), 3.157, 3.400, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army on active duty from February 1974 to February 1994. The record reflects the Veteran’s social security administration records are now part of the claim’s file. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). 1. Entitlement to an increased rating in excess of 40 percent for lumbosacral strain. In August 2016, the Veteran testified before the undersigned at a videoconference hearing and stated that since his last VA examination in 2015, his back condition has worsened. The Veteran’s lumbar spine disability is rated according to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The Formula for Rating Intervertebral Disc Syndrome based upon Incapacitating Episodes provides that a 60 percent rating is assignable with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations under diagnostic code 5243, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note(1). The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis). Id. At the August 2016 videoconference hearing, the Veteran testified that his back has worsened, in that he experiences back spasms 3-4 times a week which occur 2-3 times a day. See August 2016 Hearing Transcript at page 4. He stated that sometimes his spouse has to help him out of bed or massage his back for relief when it is stiff. He was using a cane but reports he is now using a walker as he was falling down 2-3 times a day. Id. at 6. He requires assistance from his spouse to tie his shoes and put on his socks, but reported being able to shower without assistance. He also reported that his doctor advised him not to drive. Id. at 15. The Veteran also stated that he had been diagnosed with Guillain-Barre syndrome. He reported that his range of motion has decreased since his last VA examination in February 2015. Id. at 7. The Veteran has not alleged he suffers from ankylosis. The Veteran’s lumbar spine was examined by VA in December 2004, May 2006, September 2008, October 2009, May 2010, October 2011, April 2015 and most recently August 2017. None of the VA examiners have diagnosed the Veteran with unfavorable ankylosis. Examiners have determined the Veteran suffers from IVDS but there is no evidence that the Veteran has had any incapacitating episodes during the prior 12 months before any examination, nor does he allege such. The Veteran’s lumbar spine was most recently examined by VA in August 2017 and the examiner noted the Veteran’s reports of difficulty bending and stretching. The Veteran’s range of motion (ROM) was initially noted as forward flexion to 45 degrees, extension to 10 degrees, right/left lateral flexion to 15 degrees and right/left lateral rotation to 25 degrees. Upon repeated use over time, the Veteran’s forward flexion is reduced to 35 degrees. The Veteran’s abnormal ROM contributes to difficulty in flexion and extension. The VA examiner noted there was normal muscle strength with no muscle atrophy. The examiner further noted the Veteran’s reflex examination was normal. The Veteran said he used a scooter regularly and a walker occasionally. The examiner noted the IVDS diagnosis but said the Veteran had not experienced any incapacitating episodes, which require bed rest prescribed by a physician, within the last year. The examiner noted there was no ankylosis of the lumbar spine. The Board also notes that the Veteran is already in receipt of separate ratings for neurological abnormalities resulting from his lumbosacral strain. Indeed, service connection has been established for radiculopathy of the lower extremities. The evidence does not show, and he does not assert, that any other neurological abnormalities are present. Under DC 5237, a rating in excess of 40 percent for lumbosacral strain requires a diagnosis of unfavorable ankylosis. 38 C.F.R. § 4.71a. Because the Veteran has not been diagnosed with ankylosis at any point in the claim period, the Board finds that a rating in excess of 40 percent is not warranted under this code. To the extent that the Veteran’s lumbosacral strain inhibits his ability to bend; tie his shoes; sit or stand for long periods without pain; walk without tripping; and drive himself, the Board notes that the Veteran is in receipt of a TDIU by reason of his back disability, and that this award compensates him for any signs and symptoms not expressly contemplated by the 40 percent rating under DC 5237. Under DC 5243, a rating in excess of 40 percent requires incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71(a). However, Note (1) to DC 5243 states that an incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. The Veteran has not been prescribed bed rest at any point during the claim period, the Board finds that a rating higher than 40 percent is not warranted under DC 5243. The Board finds that the criteria for a rating in excess of 40 percent for lumbosacral strain have not been met for the period specified above. A rating of 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine, which has not been shown. No ankylosis is asserted or demonstrated. A rating in excess of 40 percent is not assignable based upon incapacitating episodes, as the evidence does not show incapacitating episodes of intervertebral disc syndrome having a duration of at least 6 weeks during a 12-month period. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the Veteran’s claims and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board therefore finds that the criteria for a rating in excess of 40 percent for the Veteran’s lumbosacral strain have not been met at any time during the appeal period. As a preponderance of the evidence is against the assignment of a higher rating, 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 v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a separate compensable rating for radiculopathy, right lower extremity, prior to October 27, 2005, as a neurological manifestation of the Veteran’s service-connected lumbosacral strain. The Veteran contends that an earlier effective date is warranted for a separate compensable rating for right lower leg radiculopathy, a neurological manifestation of the Veteran’s service-connected lumbosacral strain. Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. Additionally, 38 U.S.C. § 5101(a) provides that “A specific claim in the form prescribed by the Secretary . . . must be filed in order for benefits to be paid or furnished to any individual.” In McTighe v. Brown, 7 Vet. App. 29 (1994), the Court of Appeals for Veterans Claims (Court) remarked that 38 U.S.C. § 5110 and 38 U.S.C. § 5101 clearly establish that an application must be filed. For VA compensation purposes, a “claim” is defined as “a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary.” 38 C.F.R. § 3.1(p) (2017). An informal claim is “[a]ny communication or action indicating an intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a) (2017). It must “identify the benefit sought.” Id. Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an applications or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In February 2006, the Veteran submitted a Form 9 regarding his lumbosacral strain increased rating claim. The Veteran included a written statement in the Form 9 stating that he had been evaluated by a neurologist and diagnosed with radiculopathy of his lower right side. See February 2006 VA Form 9. In a July 2006 rating decision, the RO granted a separate compensable rating for right lower extremity radiculopathy, as a neurological manifestation of his service-connected lumbosacral strain. An effective date of October 27, 2005 was assigned as this was the date of diagnosis for the Veteran’s right-side radiculopathy. See October 27, 2005 El Paso VAMC Treatment Records. A review of the record confirms that right side lumbar radiculopathy was first clinically noted/diagnosed on October 27, 2005. Accordingly, entitlement to a separate compensable rating for right lower extremity radiculopathy arose on that day, as this was the date the increase was factually ascertainable. While the law provides for an increase for the date of claim, November 1, 2004 for such (or from when an increase is shown during the year preceding the date of claim), the AOJ awarded the Veteran service connection and a separate rating for right lower extremity radiculopathy from the date of diagnosis, therefore, the date entitlement arose. Governing law and regulations provide no authority for a more retroactive award. As such, the Veteran’s claim of entitlement to an earlier effective date for a separate compensable rating for right lower extremity radiculopathy, a neurological manifestation of the Veteran’s service-connected lumbosacral strain, is denied. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. Entitlement to a separate compensable rating for radiculopathy, left lower extremity, prior to November 1, 2004, as a neurological manifestation of the Veteran’s service-connected lumbosacral strain. Prior to the case returning to the Board, the RO granted the Veteran’s claim for entitlement to a separate compensable rating left lower extremity radiculopathy prior to September 13, 2008, as a neurological manifestation of the Veteran’s service-connected lumbosacral strain. A new effective date of November 1, 2004 was assigned, the date a claim for increased rating for the Veteran’s service-connected lumbar spine condition was received. As the Veteran is entitled to seek the maximum benefit for his claim, the Board will discuss whether an even earlier effective date is warranted. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As noted above, for an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date, otherwise the date the claim was received. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(2). In January 1997, the Veteran was treated for a complaint of back pain that radiated down to the left leg. In March 1997, a CT scan was conducted but was negative. However, in June 1997, the Veteran’s physician diagnosed him with lumbar radiculopathy of the left leg. See June 3, 1997 El Paso VAMC Records. Although the Veteran’s left lower extremity radiculopathy was noted back in 1997, his claim for increased rating for his lumbosacral strain was not filed until November 1, 2004, more than a year after it was factually ascertainable that an increase in the disability had occurred. As there are no provisions permitting an earlier date, the Board finds that an effective date earlier than November 1, 2004, is not warranted. To that extent, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to February 11, 2015. The Veteran contends that he is entitled to an earlier effective date for the award of TDIU. The RO granted the Veteran’s claim for TDIU in an October 2015 rating decision. The Veteran’s claim for TDIU was filed on February 11, 2015. A TDIU claim qualifies as a claim for increased disability compensation. The Court determined that a TDIU award is an award of increased disability compensation for purposes of assigning an effective date. Wood v. Derwinski, 1 Vet. App. 367, 369 (1991); see also Hurd v. West, 13 Vet. App. 449 (2000); Norris v. West, 12 Vet. App. 413, 420-21 (1999). As discussed earlier, the law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Significantly, in Norris, supra, the Court held that when an RO is considering a rating increase claim from a claimant whose schedular rating meets the minimum criteria of 38 C.F.R. § 4.16(a), and there is evidence of current service-connected unemployability in the record, evaluation of that rating increase must also include evaluation of a reasonably raised claim for a TDIU. The Federal Circuit has also held that once a Veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the VA must consider total disability based on individual unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Similarly, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. A request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability which is part of a pending claim for increased compensation benefits. The Veteran filed claims for TDIU in 2006 and 2009 but did not appeal those claims. The Veteran filed a claim for TDIU in February 2015. Subsequently in April 2015, his lumbar spine was examined by VA, and at that time the VA examiner determined the Veteran’s lumbar spine condition prevented him from being able to secure and maintain substantially gainful employment. Having reviewed the relevant evidence of record for the time period on appeal, the Board finds entitlement to a TDIU did not arise until February 11, 2015, the date of the claim for TDIU. The Board is sympathetic to the Veteran’s contention that the effective date for TDIU should be earlier, however, the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. The controlling regulation clearly and specifically provides that the effective date for a TDIU shall be the date entitlement arose, the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date, or the date of receipt of the claim, whichever is later. 38 C.F.R. § 3.400(o). On these facts, because the earliest effective date legally possible has been assigned under 38 C.F.R. § 3.400, and no effective date for the award of TDIU earlier than February 11, 2015 (date TDIU claim was filed) is assignable, the appeal for an earlier effective date as to the issue of entitlement to a TDIU is without legal merit, and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). For these reasons, the Board concludes that an effective date prior to February 11, 2015 for the award of a TDIU is not warranted as a matter of law. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel