Citation Nr: 1806549 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-08 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an effective date earlier than March 7, 2012, for the grant of service connection for left lower extremity radiculopathy. 2. Entitlement to an effective date earlier than March 7, 2012, for the grant of service connection for right lower extremity radiculopathy. 3. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy. 4. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy. 5. Entitlement to a rating in excess of 20 percent for a thoracolumbar spine disability, to include degenerative changes (back disability). 6. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee. 7. Entitlement to a rating for traumatic left knee injury with post-operative instability (left knee instability) in excess of zero percent prior to March 1, 2016, and in excess of 20 percent thereafter. REPRESENTATION Veteran represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran had active duty from May 1990 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In March 2016, the RO increased the rating for the Veteran's left knee instability from zero percent to 10 percent disabling, effective March 1, 2016. In March 2017, the Veteran's attorney representative submitted a notice of disagreement with the March 2016 rating decision, seeking an effective date earlier than March 1, 2016, for the grant of an increased rating for left knee inability. The Board notes that the increased rating claim for left knee instability on appeal encompasses the issue of an earlier effective date for the 20 percent rating. Accordingly, this issue does not require a separate appeal. The issues of entitlement to increased ratings for the Veteran's back and left knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran was separated from active service in January 1995. 2. Lower extremity radiculopathy manifested as early as 2003. 3. On March 7, 2012, VA received the Veteran's claim for an increased rating for his service-connected back disability; he did not file a separate claim for service connection for radiculopathy. 4. The Veteran's left and right lower extremity radiculopathy meet the criteria of moderate incomplete paralysis, but do not meet or nearly approximate the criteria of severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than March 7, 2012, for the grant of service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 2. The criteria for an effective date earlier than March 7, 2012, for the grant of service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 3. The criteria for a 20 percent rating, but not higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a. Diagnostic Code 8526 (2017). 4. The criteria for a 20 percent rating, but not higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a. Diagnostic Code 8526 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier Effective Dates The Veteran seeks an effective date earlier than March 7, 2012 for the grant of service connection for radiculopathy of the left and right lower extremities. Historically, the Veteran was separated from active service in January 1995. The Veteran reports that his symptoms of radiculopathy began as early as 2003. See, e.g., Statement (March 23, 2017). The Board finds that such is consistent with medical records showing reports of lower extremity pain as early as January 2003. See Private treatment record (January 12, 2003); VA examination (March 2003) (showing positive straight leg raising test). On March 7, 2012, VA received the Veteran's claim for an increased rating for his service-connected back and left knee disabilities. In May 2012, a VA examiner noted radiculopathy of the left and right lower extremities associated with the Veteran's service-connected back disability. In August 2012, the RO granted service connection for radiculopathy of the left and right lower extremities, effective March 7, 2012. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Id. Initially, the Board finds that entitlement to service connection for radiculopathy likely arose earlier than the established effective date as the Veteran competently reported symptoms, which were subsequently diagnosed as lower extremity radiculopathy, as early as 2003. Accordingly, this case turns on the date of receipt of the Veteran's claim as the effective date is the later of the date of entitlement and the date of claim. Neither the Veteran nor his attorney representative have assert that he filed a claim for radiculopathy. Instead, they contend that the Veteran's claim was encompassed in his claim for an in increased rating for his back disability. Historically, the RO granted an increased rating for the service-connected back disability in April 2008. After the decision, the RO did not receive any evidence from the Veteran until March 7, 2012, when he filed a claim for increase for the back. Furthermore, the Veteran does not contend that he filed a claim for the back disability prior to March 7, 2012. Absent an earlier claim for increase for the back or service connection for radiculopathy, the Board concludes that the earliest effective date that is warranted is the currently assigned date of March 7, 2012, which is the earliest effective date allowed by law. The Veteran's attorney representative argues that medical evidence suggesting the presence of radiculopathy as early as 2003 should be construed as a claim for radiculopathy. The Board finds, however, that mere receipt of medical records cannot not be construed as an informal claim. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Moreover, the fact that medical records suggest the presence of a disability does amount to the intent to apply for VA benefits. See Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006). Accordingly, an effective date earlier than March 7, 2012, is not warranted on the basis of medical records suggesting the presence of radiculopathy. Radiculopathy of the Lower Extremities The Veteran, by and through his attorney representative, seeks a 20 percent rating for radiculopathy of the left and right lower extremities. See Statement (March 22, 2017). The Veteran's radiculopathy is currently rated 10 percent disabling under Diagnostic Code 8526, which provides a 40 percent rating for complete paralysis of the anterior crural nerve (femoral) with paralysis of the quadriceps extensor muscles. Incomplete paralysis of the femoral nerve warrants a 30 percent rating if it is severe, a 20 percent rating if it is moderate, and a 10 percent rating if it is mild. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that 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. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id. at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. Here, the evidence shows that the Veteran's radiculopathy of the left and right lower extremities has manifested with moderate, incomplete paralysis of the femoral nerve. In this regard, the Board finds that the Veteran's report of mild numbness and intermittent pain with moderate paresthesias and/or dysesthesias is consistent with the opinion of the March 2016 VA examiner opinion that the Veteran's radiculopathy is moderate. Moreover, the VA examiner's report indicates that the Veteran's symptoms are wholly sensory, which further supports the Board's finding that the Veteran's radiculopathy is, at most, moderate. 38 C.F.R. § 4.124a. Finally, in the absence of extremely intense impairment, the Board finds that 20 percent ratings, but not higher, for radiculopathy of the left and right lower extremities are warranted. The Board acknowledges the May 2012 examiner's opinion that the Veteran's radiculopathy is mild, but finds that, after resolving any doubt in the Veteran's favor, the evidence of record, when viewed as a whole, is demonstrative of moderate impairment. ORDER An effective date earlier than March 7, 2012, for the grant of service connection for left lower extremity radiculopathy is denied. An effective date earlier than March 7, 2012, for the grant of service connection for right lower extremity radiculopathy is denied. Subject to the law and regulations governing payment of monetary benefits, a 20 percent rating for the Veteran's left lower extremity radiculopathy is warranted. Subject to the law and regulations governing payment of monetary benefits, a 20 percent rating for the Veteran's right lower extremity radiculopathy is warranted. REMAND With regard to the service-connected back and left knee disabilities, the Board finds that a new VA examination is needed to comply with the last sentence of 38 C.F.R. § 4.59 as it pertains to testing the joints for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint (or for an explanation as to why such testing cannot be conducted). See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The most recent VA examination, which was conducted in March 2016, does not provide this information. Additionally, VA examination is also needed to address functional limitations during flare-ups. Indeed, on VA examination in March 2016, the Veteran reported increased knee and back symptomatology during flare-ups; however, the examiner did not estimate the limitation of motion during flare-ups. Significantly, the Veteran contends that the VA examiner did not fully contemplate the increased limitation he experiences during flare-ups. See, e.g., Statement (March 22, 2017). Accordingly, upon remand, if the examination is not conducted during a flare-up, the VA examiner will be asked to estimate functional loss during flare-ups based on the Veteran's descriptions of his additional loss of function during flare-ups, information gleaned from his medical records, or discerned other sources available to the examiner. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Such information is necessary to adequately understand his additional or increased symptoms and limitations experienced during flares. Id. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he can submit lay statements from himself and from other individuals who have first-hand knowledge of the severity and the impact of his service-connected disabilities on his ability to work. 2. Then, arrange for the Veteran to undergo a VA examination to evaluate the current severity of his service-connected left knee and back disabilities. The examiner must test the joints involved for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. The examiner must also to describe all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups. If the examination is not conducted during a flare-up or after repetition over time, the examiner is to ask the Veteran to describe the additional functional loss the Veteran suffers during flare-ups and after repetition over time. The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information. Then, the examiner is to estimate the functional loss (in terms of lost range of motion) based on all the evidence of record. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she must clearly explain why that is so. 3. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs