Citation Nr: 21001920 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 10-05 786 DATE: January 12, 2021 ORDER Entitlement to an earlier effective date of September 20, 2007 for the grant of service connection for partial neurogenic bladder is granted. Entitlement to a rating in excess of 20 percent prior to October 10, 2018 for left lower extremity radiculopathy is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to January 29, 2011 for a low back disability is remanded. Entitlement to a rating in excess of 20 percent prior to October 10, 2018 for a low back disability is remanded. FINDINGS OF FACT 1. On March 21, 2008, the Veteran filed a claim for an increased rating for his low back disability. On September 20, 2007, in a private treatment symptoms of the Veteran’s partial neurogenic bladder condition, a complication of his low back disability, are factually ascertainable. On September 4, 2009, the Veteran filed a consequent claim for the partial neurogenic bladder associated with his service-connected low back disability. 2. Prior to October 10, 2018, the Veteran’s left lower extremity radiculopathy is manifest by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria are met for an earlier effective date of September 20, 2007, but no earlier, for the award of service connection for partial neurogenic bladder. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.21, 4.120, 4.124a, DC 8520. 2. The criteria for a disability rating in excess of 20 percent for lower left extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1982 to June 1988. This appeal comes before the Board of Veterans’ Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Specifically, in September 2008, the RO confirmed and continued the rating for the Veteran’s low back disability and in June 2016 granted service connection for his neurogenic bladder (a complication of the low back disability). Additionally, during the pendency of the appeal, an April 2015 rating decision granted service connection for left lower extremity radiculopathy also associated with the service-connected low back disability. In May 2019, the Board granted a higher rating for the Veteran’s left lower extremity radiculopathy and granted an earlier effective date of August 13, 2009 for partial neurogenic bladder. The Board also denied increases in the staged ratings for the Veteran’s low back disability. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (“CAVC” or “the Court”). In March 2020, the Court issued an order that vacated part of the Board’s decision as to the issues of entitlement to an earlier effective date for service connection for partial neurogenic bladder; entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy prior to October 10, 2018; entitlement to a rating in excess of 10 percent prior to January 29, 2011 for a low back disability; and entitlement to a rating in excess of 20 percent prior to October 10, 2018 for a low back disability, and remanded the Veteran’s claims in compliance with the Parties’ Joint Motion for Partial for Remand (JMPR). In October 2020, the Veteran’s attorney requested an extension of time until November 16, 2020 to submit evidence and argument with regard to several issues, include the left lower extremity radiculopathy. While the Board did not explicitly respond to this request, the extension request has been satisfied as two months after the requested November 2020 date have since passed. An additional extension has not been requested. No additional evidence has been submitted. Accordingly, the Board finds it can proceed on the available evidence. 1. Entitlement to an earlier effective date before August 13, 2009 for service connection for partial neurogenic bladder is granted. The Veteran seeks an effective date prior to August 13, 2009, for the award of service connection for partial neurogenic bladder. Per the March 2020 CAVC JMPR, the Parties’ agreed that the Board erred when it failed to discuss favorable evidence to the Veteran. On March 21, 2008, the Veteran filed his claim for an increased rating for his low back disability. On September 4, 2009, he filed his informal claim for partial neurogenic bladder. In a June 2016 rating decision, he was granted service connection for partial neurogenic bladder and assigned an effective date of September 4, 2009. In Harper v. Brown, 10 Vet. App. 125 (1997), the Court discussed the three possible effective dates that may be assigned in an increased-rating context. (1) If an increase in disability occurs after the claim is filed, the date that the increase in shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper, 10 Vet. App. at 126. Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received, and if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). According to 38 C.F.R. § 3.400(o)(2), the effective date of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year of such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. Id.; see also 38 U.S.C. § 5110(a), (b)(2); Hazan v. Gober, 10 Vet. App. 511 (1997). Assignment of an effective date in the service-connection context is different, however, and the effective date for a secondarily service-connected condition is not necessarily identical to that of the original condition; the effective date could arise no earlier than the date on which the appellant applied for benefits for the condition at issue. See Ellington v. Nicholson, 541 F.3d 1364 (Fed. Cir. 2008). The effective date assigned for a secondary service-connected condition does not have to be the same as the effective date for the underlying condition simple because 38 C.F.R. § 3.310 states that a “secondary condition shall be considered a part of the original condition.” See Ross v. Peake, 21 Vet. App. 528 (2008). Here, though, neurological disabilities associated with a spine disability are to be separately evaluated under the appropriate diagnostic codes. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).This is significant because the Board finds that the grant of service connection for partial neurogenic bladder was part and parcel of the Veteran’s claim for an increased rating for his low back disability. As such, when the Veteran filed his claim for an increased rating for his low back disability on March 21, 2008, that became the date of receipt for his claim of entitlement to service connection for partial neurogenic bladder. The Veteran was diagnosed with partial neurogenic bladder in August 2009. See August 2009 Private Treatment Record. A September 2007 private treatment note indicates the Veteran had not been able to work secondary to urinary pain. Review of the genitourinary system indicated the Veteran did not have urgency, frequency dysuria, hematuria, or pyuria and there was occasional hesitancy and nocturia. The Veteran denied loss of bowel or bladder control. A July 2009 private treatment record notes the Veteran noticed urinary infrequency and urgency, with hesitancy and nocturia. The Veteran reported almost experiencing an episode of obstruction. Based on the evidence of record, the Board resolves reasonable doubt in favor of the Veteran and establishes an earlier effective date of September 20, 2007 for the grant of service connection of partial neurogenic bladder on the basis that a factually ascertainable worsening of symptoms is described within one year period prior to the date of the claim. 38 C.F.R. § 3.400 (o). This is the earliest effective date possible given the facts of this case and the appeal is granted. 2. Entitlement to a rating in excess of 20 percent prior to October 10, 2018 for left lower extremity radiculopathy is denied. The Veteran seeks a higher initial rating for his left lower extremity radiculopathy. Per the March 2020 CAVC JMPR, the Parties’ agreed that the Board erred when it failed to provide adequate reasons and bases for the evaluation assigned. A 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve of the lower extremity. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Reasonable doubt regarding the degree of disability is to be resolved in the Veteran’s favor, 38 C.F.R. § 4.3, and where there is a question as to which two evaluations to apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. A January 2011 VA examination noted the Veteran was observed to have an antalgic gait. The examination also showed hypoactive (1+) reflexes bilaterally at L4 and S1. A VA examination from February 2011 indicates the Veteran had 4/5 power in his lower extremities. In addition, the Veteran reported increasing pain about his left radiculopathy down the back of his calf that was becoming more consistent and painful, and burning on his left anterior thigh. The Veteran underwent a VA examination in January 2015 and the examiner stated the severity of the Veteran’s radiculopathy was mild. The Board finds that based on the evidence of record, to include the Veteran’s statements, the severity of the Veteran’s radiculopathy is moderate. The January 2015 VA examiner noted the severity of the Veteran’s radiculopathy was mild; however, given the Veteran’s well-documented complaints of moderate pain, the Board will resolve reasonable doubt in the Veteran’s favor and will assign the 20 percent rating. Therefore, the Veteran is entitled to a 20 percent rating, but no higher, for his radiculopathy. In this regard, DC 8520 only allows for a rating above 20 percent with a finding of moderately severe, severe with marked muscular atrophy, or complete paralysis of the sciatic nerve. No evidence of record, to include medical treatment notes, VA examination reports, or statements of the Veteran indicate that his radiculopathy of the left lower extremity has been moderately severe, severe, or manifested by complete paralysis prior to October 10, 2018. Specifically, the January 2015 VA examiner found the severity of the Veteran’s radiculopathy to be mild. Such opinion was based on the Veteran’s reports of pain with no other numbness, paresthesias, dysesthesias or any other symptoms. Further, while the Veteran reported pain during the appellate period prior to October 10, 2018, he does not describe such pain as moderately severe or severe. The weight of the evidence does not demonstrate complete paralysis of the sciatic nerve. For the reasons stated above, the Board finds entitlement to a rating in excess of 20 percent prior to October 10, 2018 for left lower extremity radiculopathy is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent prior to January 29, 2011 for a low back disability is remanded. 2. Entitlement to a rating in excess of 20 percent prior to October 10, 2018 for a low back disability is remanded. Per the March 2020 CAVC JMPR, the Parties’ agreed that the Board erred when it relied upon the June 2008, January 2011, and January 2015 inadequate VA medical opinions in denying increased ratings for the Veteran’s low back disability. The Court has held that with respect to flare-ups, VA examiners must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation, including by soliciting information regarding frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). VA examinations also must 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. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). During each of the VA examinations in June 2008, January 2011, and January 2015, the Veteran reported flare-ups of the back that caused significant pain. Each of the VA examiners did not state whether the Veteran’s flare-ups resulted in additional functional loss. Therefore, these examinations are not consistent with the holding in Sharp. In addition, the January 2011 VA examination did not test the Veteran on both active and passive motion, or in weight-bearing and non-weight-bearing. As such, this examination is not consistent with the holding in Correia. Therefore, consistent with the March 2020 CAVC JMPR, the Board finds that a remand is necessary for the Veteran’s increased rating claim for his service-connected back disability in order to obtain a retroactive medical opinion that more adequately addresses the requirements laid out in Correia and Sharp. Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retrospective medical evaluation may be warranted). The matters are REMANDED for the following action: 1. Attain an addendum medical opinion regarding the severity of the Veteran’s low back disability. A new examination is left to the discretion of the VA examiner. (a.) The examiner is requested to provide a retrospective opinion, to the extent possible, as to the severity of the Veteran’s low back disability throughout the rating period from 2007. To the extent possible, the examiner is asked to state the severity, frequency, and duration of any flare-ups, and the degree of functional loss experienced by the Veteran during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments caused by the disabilities and discuss the effect of the Veteran’s disabilities on any occupational functioning and activities of daily living. (b.) The examiner should determine whether the Veteran’s range of motion results from the June 2008, January 2011, and January 2015 VA examinations would have been reduced if tested in both active and passive motion and in weight-bearing and non-weight-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 explain the basis for this decision. Additionally, the examiner should provide at which point in the Veteran’s range of motion that pain started or explain why such measurements were not provided. The examiner should also consider the Veteran’s lay statements. (Continued on the next page)   A complete rationale must be provided for all opinions offered. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, Associate 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.