Citation Nr: 20021290 Decision Date: 04/09/20 Archive Date: 04/09/20 DOCKET NO. 20-07 532 DATE: April 9, 2020 ORDER Entitlement to an effective date of April 8, 2015, but not earlier, for the assignment of a separate 10 percent rating for right lower extremity radiculopathy associated with lumbosacral strain with a history of L4/5 spondylosis is granted. FINDING OF FACT April 8, 2015, is the earliest evidence of mild incomplete paralysis of the sciatic nerve of the right lower extremity during the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to an effective date of April 8, 2015, but not earlier, for the assignment of a separate 10 percent rating for right lower extremity radiculopathy associated with lumbosacral strain with a history of L4/5 spondylosis have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2007 to May 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that awarded a separate 10 percent rating for right lower extremity radiculopathy associated with the Veteran’s lumbosacral strain with a history of L4/5 spondylolysis, effective April 24, 2017. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (Evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code). 1. Entitlement to an effective date of April 8, 2015, but not earlier, for the assignment of a separate 10 percent rating for right lower extremity radiculopathy associated with lumbosacral strain with a history of L4/5 spondylosis is granted. Here, in a May 2017 rating decision the Veteran was awarded service connection for lumbosacral strain with a history of L4/5 spondylolysis, effective May 16, 2011. As noted above, he was also awarded a separate 10 percent rating under Diagnostic Code 8520 for right lower extremity radiculopathy associated with his lumbosacral strain with a history of L4/5 spondylolysis, effective April 24, 2017, the date of his VA Back examination. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (Evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code). Diagnostic Code 8520 provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Veteran seeks an effective date of May 16, 2011, for the assignment of the separate 10 percent rating for his right lower extremity radiculopathy. He maintains that he experienced mild right lower extremity radiculopathy prior to his April 2017 VA examination. See VA Form 9, dated February 18, 2020. In statements dated in February 2020, he and his wife also stated that he experienced pain in his right leg since returning home from his deployment in October 2010. As a general rule, the effective date of service connection in an original claim is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. For increased rating claims, the effective date of an evaluation and award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(o)(1). For the following reasons, the Board finds that an effective date of April 8, 2015, is warranted for the assignment of a separate 10 percent rating for the Veteran’s right lower extremity radiculopathy. A VA treatment note dated April 15, 2015 notes that the Veteran reported increased low back pain for one week, i.e., since April 8, 2015. He described back pain radiating into his right hip and right leg which came and went all day and disturbed his sleep. The identified problem was listed as sciatica. As such, the Board finds that the medical evidence supports a finding of mild incomplete paralysis of the sciatic nerve in the right lower extremity as of April 8, 2015. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. However, an effective date prior to April 8, 2015 for the assignment of a separate 10 percent rating under Diagnostic Code 8520 for right lower extremity radiculopathy is not warranted. The Veteran’s VA treatment records dated from September 2011 to April 2015, in pertinent part, are associated with the file. These records show that the Veteran reported back pain in October 2011, but did not mention any right leg symptoms. See VA Treatment records dated October 3, 2011 and October 11, 2011. Neurological examination of the lower extremities, to include strength and sensation, was normal in September 2012. See VA Treatment record dated September 10, 2012. On February 4, 2013, the Veteran complained of right low back pain that radiated down to his middle thigh, but he denied any numbness, tingling, and weakness in his lower extremity. Further, on examination strength of the right lower extremity was 5/5 and sensation was intact; the examiner did not diagnose any neurological disability of the right lower extremity. Thus, no impairment of the sciatic nerve was demonstrated at that time. Thereafter, on VA Back examination in July 2013, the Veteran denied any radicular pain or any other signs or symptoms due to radiculopathy. Neurological examination of the right lower extremity was normal, to include strength, reflexes, and sensation. The VA examiner noted that no signs or symptoms of radiculopathy were present. A VA treatment record shows that neurological examination of the lower extremities, to include strength and sensation, was again normal in December 2013. See VA Treatment record dated December 9, 2013. It was not until April 2015 that the Veteran was shown to have sciatica of his right lower extremity. (Continued on the next page)   In so deciding, the Board is aware of the Veteran’s and his wife’s statements made in February 2020 that the Veteran’s right lower extremity symptoms have been present since October 2010. However, other than the single notation of back pain radiating to his middle thigh in February 2013, the Veteran’s VA treatment records are negative for any complaints concerning his right lower extremity. And on VA examination in July 2013, he specifically denied any radicular symptoms. Therefore, the Board finds the recent statements made in February 2020 to lack credibility. In addition, the Veteran’s and his wife’s lay statements are outweighed by the medical evidence of record, which showed normal neurological examination of his right lower extremity in September 2012, February 2013, July 2013, and December 2013. In sum, the evidence does not support a finding of mild incomplete paralysis of the sciatic nerve of the right lower extremity prior to April 8, 2015. Thus, the preponderance of the evidence weighs against entitlement to the assignment of a separate 10 percent rating under Diagnostic Code 8520 for right lower extremity radiculopathy prior to April 8, 2015, as entitlement did not arise prior to that date. Accordingly, an effective date of April 8, 2015, but no earlier, is granted for the assignment of a separate rating of 10 percent for right lower extremity radiculopathy associated with lumbosacral strain with a history of L4/5 spondylosis, which is the earliest date entitlement arose. See 38 C.F.R. § 3.400. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.