Citation Nr: 19192001 Decision Date: 12/06/19 Archive Date: 12/06/19 DOCKET NO. 19-22 150 DATE: December 6, 2019 ORDER Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. Entitlement to an effective date earlier than February 11, 2015 for the grant of service connection for radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. The Veteran’s radiculopathy of the left lower extremity is manifested by moderate incomplete paralysis of the peroneal nerve. 2. The Veteran did not file a claim for service connection for radiculopathy of the left lower extremity at any point prior to February 11, 2015, the date of the VA treatment record first showing radiculopathy. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.1-4.14, 4.124a, Diagnostic Code 8520. 2. The criteria for an effective date earlier than February 11, 2015 for the grant of service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1993 to October 2013. The Board acknowledges that the Veteran has an active claim for entitlement to service connection for asbestosis, and that he has filed a VA Form 9 to perfect his appeal to the Board. However, as the RO has not yet certified this issue to the Board via a VA Form 8, the Board will not address the claim. As such, the discussion below will focus solely on the matter at issue. Initial Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. By way of procedural history, the Veteran filed a claim of service connection for radiculopathy in September 2017, in connection with an increased rating claim for his service-connected low back disability. The RO, in granting service connection for radiculopathy of the left lower extremity, assigned an initial rating of 10 percent, effective April 10, 2017. The RO assigned the effective date based on a private treatment record showing a diagnosis of radiculopathy. Thereafter, a June 2019 rating decision assigned an earlier effective date of February 11, 2015 for service connection for left lower extremity radiculopathy and, for the entire period, increased the Veteran’s rating to 20 percent. In so finding, the RO stated that since the February 11, 2015 record showing the initial symptoms of radiculopathy of the left lower extremity was a government record, dated prior to the March 24, 2015 regulation change, service connection was warranted from that date. The RO assigned the current 20 percent rating for moderate radiculopathy of the left lower extremity involving the peroneal nerve pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 20 percent disability rating is assigned for moderate incomplete paralysis. If the condition is considered “moderately severe,” a 40 percent disability rating is provided, and a 60 percent rating is warranted for conditions considered “severe, with marked muscular atrophy.” The Board observes that the words “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. VA’s Adjudication Manual gives the following guidance to VA raters on cases where a peripheral nerve disability is only manifested by sensory impairment: “To make a choice between mild and moderate [incomplete paralysis], consider the evidence of record and the following guidelines: The mild level of evaluation would be more reasonably assigned when sensory symptoms are recurrent but not continuous, assigned a lower medical grade reflecting less impairment, and/or affecting a smaller area in the nerve distribution. Reserve the moderate level of evaluation for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are continuous assigned a higher medical grade reflecting greater impairment and/or affecting a larger area in the nerve distribution. VA Adjudication Procedures Manual, M21-1, III. iv. 4. N. 4.b (November 16, 20). The manual further provides that, for severe incomplete paralysis of a peripheral nerve marked muscle atrophy is expected. In general, severe incomplete paralysis of a peripheral nerve involves motor and/or reflex impairment (for example atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Id. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve. Id. III. iv. 4. N. 4. c. In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent for radiculopathy of the left lower extremity at any point during this appeal as there is no evidence to support a finding that his left lower extremity radiculopathy has been manifested by moderately severe incomplete paralysis of the sciatic nerve. In connection with the claim for service connection for the lumbar spine, the Veteran was scheduled for a VA examination in January 2014. However, at that time, the VA examiner noted there was no objective evidence of radiculopathy. The first notation of radiculopathy of the left lower extremity was in a February 11, 2015 treatment record. The note indicates that the Veteran suffers from pain from the left hip radiating into the thigh. Following the Veteran’s claim for service connection for radiculopathy of the left lower extremity, he was scheduled for a VA examination in October 2017. The examiner noted moderate pain the left lower extremity but indicated that the overall severity of the radiculopathy was mild. A September 2018 VA peripheral nerves examination resulted in findings of moderate constant pain, mild paresthesias/ dysaesthesia, and mild numbness. The examiner indicated the Veteran has an antalgic gait due to radiating pain of the lower extremities. In the opinion of the examiner, the level of incomplete paralysis of the peroneal nerve in the Veteran’s left lower extremity was mild. The VA treatment records associated with the claims file also show consistent reports of radiating pain and numbness in the left lower extremity. Here, the findings of the October 2017 and September 2018 VA examinations revealed mild radiculopathy of the left lower extremity. Additionally, the VA treatment records dated throughout the appeals period support the findings included in the VA examinations discussed above. The Board finds that the radiculopathy of the left lower extremity is best rated as moderate and a higher rating is not warranted. 38 C.F.R. § § 4.124a, Diagnostic Code 8520. In fact, there is no evidence of record to suggest that the Veteran’s left lower extremity radiculopathy is moderately severe, as is required for the next higher 40 percent rating under DC 8520. During all of the VA examinations, the Veteran had normal muscle strength and no muscle atrophy. Additionally, there is no evidence of foot paralysis at any point during the appeals period. Because there was no diminution in muscle strength and no muscle atrophy, it is appropriate to describe the Veteran’s left lower extremity peripheral nerve symptoms as “wholly sensory” 38 C.F.R. § 4.124a, which means the currently assigned rating, reflecting moderate incomplete paralysis, is appropriate. According to the relevant Manual provisions, the assigned rating would be appropriate for “the most significant and disabling cases of sensory-only involvement.” M21-1, III. iv. 4. N. 4. B. During both the October 2017 and September 2018 VA examinations, the examiners found the severity of the Veteran’s incomplete paralysis to be mild, not moderate. Because the September 2018 peripheral nerves examiner identified the superficial peroneal nerve – rather than the sciatic nerve – as the nerve affected by the Veteran’s left lower extremity radiculopathy, the Board has considered the possibility that DC 8522 (“musculocutaneous nerve (superficial peroneal)”) might be more appropriate to the facts of this case than DC 8520, the code used by the RO to assign the 20 percent rating. But DC 8522 is less favorable to the Veteran. It authorizes a 20 percent rating only with severe incomplete paralysis and requires complete paralysis of the superficial peroneal nerve for a 30 percent rating. Because applying DC 8522 would not change today’s decision, there is no need for the Board to change the assigned diagnostic code. But the fact that the criteria most directly addressing the specific nerve affected by the Veteran’s radiculopathy requires severe incomplete paralysis to justify the rating already assigned further suggests that a rating higher than 20 percent is not appropriate in this case. Because the preponderance of the evidence is against the award of a higher initial rating, the benefit-of-the-doubt doctrine does not apply, and the claim for an increased rating must be denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Earlier Effective Date The provisions governing the assignment of the effective date of a claim for compensation or an increased rating are set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, or the date of increase if the increase is shown within one year prior to filing the claim, whichever is the later. 38 C.F.R. § 3.400. The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. 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 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets specific requirements, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. The provisions of former 38 C.F.R. § 3.157 commence with a restatement of the general rule that the effective date of compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is the later. The regulation further provides that receipt of clinical reports of examination or hospitalization may serve as informal claims “for increase or to reopen” where the claim is for an already service-connected condition. The date of receipt of such clinical evidence may serve to form the basis for an earlier effective date for the subsequent award of VA benefits if such benefits derive from (1) a claim for increased evaluation or (2) an application to reopen a claim for compensation denied because the service-connected disability was not of compensable degree. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implemented the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. In this case, the Veteran never specifically filed a claim for service connection for radiculopathy. Instead, the Veteran has an award of service-connected compensation for a lumbar spine disability and the left lower extremity radiculopathy has been determined to be a neurological manifestation associated with that disability, which was diagnosed during the evaluation of the lumbar spine. Therefore, in affording the Veteran every possible benefit, the Board will assume that the relevant date of claim is the date of the claim for service connection for a lumbar spine disability (November 6, 2013). Because the claim for the lumbar spine was received prior to March 24, 2015, the former regulations apply. “Application” is not defined in the statute. However, in the regulations, “claim” and “application” are considered equivalent and are defined broadly to include “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); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The Federal Circuit, in Rodriguez, pointed out that for the purpose of seeking veterans’ benefits, a claim, whether “formal” or “informal” must be “in writing” in order to be considered a “claim” or “application” for benefits, and that 38 C.F.R. § 3.1(p) defines “claim,” informal as well as formal, as a “communication in writing.” The Federal Circuit stated that when 38 C.F.R. § 3.155(a) refers to “an informal claim,” it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1(p) as a “communication in writing.” The Federal Circuit also pointed out that the provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim must take. All that is required is that the communication “indicat[e] an intent to apply for one or more benefits under the laws administered by the Department,” and “identify the benefits sought.” The Veteran is seeking an effective date earlier than February 11, 2015 for the grant of service connection for radiculopathy of the left lower extremity. He asserts that his effective date should be the same as the date of service connection for his lumbar spine disability, which is November 1, 2013, the day after his separation from service, because the diagnosed radiculopathy is a manifestation of his lumbar spine disability. By way of procedural history, the Veteran filed a claim of service connection for radiculopathy in September 2017, in connection with an increased rating claim for his service-connected low back disability. At the time of the January 2014 VA examination, conducted in connection with the claim for service connection for the low back disability (since granted), a diagnosis of radiculopathy was not provided. Instead, the examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms of radiculopathy. The medical evidence does not show a diagnosis of radiculopathy until a VA treatment note, dated February 11, 2015. Following the Veteran’s September 2017 claim for service connection for radiculopathy, the October 2017 and September 2018 VA examinations revealed mild radiculopathy of the left lower extremity. These findings were reflected in the VA treatment records. The RO, in granting service connection for the left lower extremity radiculopathy, assigned an initial rating of 10 percent, effective from April 10, 2017. The RO assigned the effective date based on a private treatment record showing a diagnosis of radiculopathy. Thereafter, a June 2019 rating decision assigned an effective date of February 11, 2015 for service connection for left lower extremity radiculopathy and increased the Veteran’s rating to 20 percent. In so finding, the RO stated that since the February 11, 2015 record showing the initial symptoms of radiculopathy of the left lower extremity was a government record, dated prior to the March 24, 2015 regulation change, service connection was warranted from that date. Here, the Veteran has not asserted, nor does the record otherwise reflect, that he filed a claim for service connection for this disability at any point prior to February 11, 2015. Indeed, the November 2013 claim for service connection for a low back disability does not mention radiculopathy. Moreover, the available evidence does not show the Veteran’s radiculopathy of the left lower extremity was diagnosed prior to the February 11, 2015 treatment record that first noted an objective indication of radiculopathy. And a thorough review of the record does not reflect that he submitted any written communication prior to February 11, 2015 indicating he was seeking or believed he was entitled to service connection for such a disability. Even if the Veteran intended his claim for service connection for a lumbar spine disability to include consideration of associated radiculopathy, the effective date for this associated disability can be no earlier than the date of the first onset of symptoms, which would be the date entitlement arose. In this case, there was no radiculopathy found prior to February 11, 2015 and, therefore, it is not possible for the Board to assign the same effective date for radiculopathy that was previously assigned to his lumbar spine disability. Consequently, the Board finds that entitlement to an effective date earlier than February 11, 2015 pursuant to 38 C.F.R. § 3.400(o)(1) is not warranted. As the preponderance of the evidence is against the claim, there is no doubt to resolve. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim is denied. Michael Nye Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.