Citation Nr: A21017488 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 201205-124256 DATE: October 28, 2021 ORDER Entitlement to an effective date of November 27, 2017 for the award of service connection for right lower extremity radiculopathy is granted. Entitlement to an effective date of November 27, 2017 for the award of service connection for left lower extremity radiculopathy is granted. Entitlement to an initial rating of 20 percent for lumbosacral strain is granted throughout the appeal period. Entitlement to an initial 10 percent rating for right lower extremity radiculopathy is granted throughout the appeal period. Entitlement to an initial 10 percent rating for left lower extremity radiculopathy is granted throughout the appeal period. REMANDED Entitlement to an initial rating in excess of 20 percent for lumbosacral strain is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran filed a formal claim for service connection for a low back disability on November 27, 2017, and the Veteran's low back disability was productive of neurologic impairment of the right lower extremity. 2. The Veteran filed a formal claim for service connection for a low back disability on November 27, 2017, and the Veteran's low back disability was productive of neurologic impairment of the right lower extremity. 3. Resolving all doubt in the Veteran's favor, the Veteran's pain and corresponding functional impairment, including during flare-ups, results in a disability analogous to limitation of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees throughout the appeal period. 4. Throughout the appeal period, the Veteran's lumbosacral strain has been productive of neurologic impairment of the right lower extremity reflective of mild incomplete paralysis of the sciatic nerve. 5. Throughout the appeal period, the Veteran's lumbosacral strain has been productive of neurologic impairment of the left lower extremity reflective of mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of November 27, 2017 for the award of service connection for right lower extremity radiculopathy have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for entitlement to an effective date of November 27, 2017 for the award of service connection for left lower extremity radiculopathy have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.400. 3. Throughout the appeal period, the criteria for an initial rating of 20 percent for lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code 5237. 4. Throughout the appeal period, the criteria for an initial rating of 10 percent for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520. 5. Throughout the appeal period, the criteria for an initial rating of 10 percent for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 2009 to April 2010 and May 2010 to June 2011, including service in Afghanistan from August 2010 to February 2011. His decorations include the Combat Action Ribbon. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C. § 5108, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA's) decision on their claim to seek review. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran timely filed a VA Form 10182 appealing the RO's August 2020 rating decision to the Board and selected the Board's hearing lane docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). The Veteran testified before the undersigned Veterans Law Judge in an October 2021 virtual hearing. At the hearing, the Veteran and his representative waived the 90-day period to submit additional evidence. See 38 C.F.R. § 20.300(b). 1. Entitlement to an effective date earlier than November 6, 2019 for the award of service connection for right lower extremity radiculopathy. 2. Entitlement to an effective date earlier than November 6, 2019 for the award of service connection for left lower extremity radiculopathy. Generally, 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. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The amendments are only effective for claims and appeals filed on or after March 24, 2015. On November 27, 2017, the Veteran filed a formal claim for service connection for a low back disability. At the time of his claim, the evidence of record included a July 2011 VA treatment record noting the Veteran's complaint of persistent low back pain, and his report of numbness he has experienced in his toes has improved. On November 6, 2019 VA back conditions examination, the examiner noted that the Veteran's symptoms of radiculopathy included bilateral intermittent pain, paresthesias and/or dysesthesias and numbness, and the Veteran was diagnosed with bilateral sciatic nerve radiculopathy. The Board notes that in rating spine disabilities, VA is to separately evaluate any associated objective neurologic abnormalities. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). In a July 2020 rating decision, the RO awarded service connection for lumbosacral strain, effective November 27, 2017 (date of claim), and right and left lower extremity radiculopathy, effective November 6, 2019 (date of VA examination). In this case, the Board notes that the July 2011 VA treatment record noted above represents the first report of radiculopathy symptoms. While radiculopathy was officially diagnosed for the first time on November 6, 2019, in light of the Veteran's earlier reported symptomatology, consistent with that found on November 6, 2019 examination, radiculopathy was present since the date of claim for service connection for a low back disability. Hence, November 27, 2017 represents the earliest possible effective date for separate ratings for radiculopathy. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (stating that, in determining when an increase is "factually ascertainable," a date should not be assigned mechanically from the date of an examination, but from the date that the increase in disability can be first factually ascertainable). Accordingly, service connection should be awarded effective from November 27, 2017, but no earlier, for right and left lower extremity radiculopathy. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). 3. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Under the General Rating Formula for Diseases and Injuries of the Spine (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, the following ratings will apply: A 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent rating is assigned for 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. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, Plate V. There are several notes following the General Rating Formula criteria, which provide: (1) Associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. (5) Unfavorable ankylosis is a condition in which the entire cervical spine, or the entire spine, is fixed in flexion or extension. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. The Veteran's lumbosacral spine disability has been rated 10 percent disabling under Diagnostic Code 5237 (for lumbosacral strain). As there is no evidence of incapacitating episodes based on the lumbosacral spine, and intervertebral disc syndrome of the lumbosacral spine has not been found during the appeal period, such criteria is not applicable to the Veteran's claim and will not be addressed further. After a review of the evidence of record, the Board finds that the Veteran's lumbosacral strain more nearly approximates an initial 20 percent rating. Throughout the appeal period, the Veteran has reported low back pain with flare-ups, manifested by difficulty functioning or getting out of bed, occurring a few times per week. See November 2019 VA back conditions examination. It has also been noted and the Veteran has testified that his treatment includes taking over the counter medication. See October 2021 hearing. The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Resolving all doubt in favor of the Veteran, the Board finds that the Veteran's lumbosacral strain more nearly approximates the criteria for an initial 20 percent rating when considering his reports of flare-ups a few times per week, manifested by difficulty functioning or getting out of bed, and the use of pain medication. Therefore, the Veteran is entitled to at least an initial 20 percent rating for his lumbosacral strain throughout the appeal period. 4. Entitlement to an initial compensable rating for right lower extremity radiculopathy. 5. Entitlement to an initial compensable rating for left lower extremity radiculopathy. The Veteran's radiculopathy of the right and left lower extremity is rated under Diagnostic Code 8520, which provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve, 20 percent for moderate incomplete paralysis of the sciatic nerve, 40 percent for moderately severe incomplete paralysis of the sciatic nerve, and 60 percent for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A rating of 80 percent is warranted for complete paralysis of the sciatic nerve, characterized by the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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 rating 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. After a review of the evidence of record, the Board finds that a separate 10 percent rating is warranted for the Veteran's right and left lower extremity radiculopathy. On November 2019 VA examination, reflex examination of the right and left lower extremities revealed 2+ (normal) deep tendon reflexes at the knee and ankle, and normal sensory examination. The examiner found the Veteran's radiculopathy symptoms included mild bilateral intermittent pain, mild bilateral paresthesias and/or dysesthesias, and mild bilateral numbness. The examiner diagnosed mild bilateral sciatic nerve radiculopathy. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating under Diagnostic Code 8520. 38 C.F.R. § 4.124a. Therefore, the Veteran is entitled to at least initial 10 percent ratings for his right and left lower extremity radiculopathy throughout the appeal period. REASONS FOR REMAND 6. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain is remanded. 7. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. 8. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. The Veteran was afforded a VA examination in November 2019. The Veteran reported his low back pain included flare-ups, occurring a few times per week, manifested by difficulty functioning or getting out of bed. In addition, it was noted the Veteran's treatment included over the counter medication. Despite the Veteran's statements, the examiner estimated that the Veteran's range of motion during a flare-up would be unchanged. In light of the inconsistencies in the examination, as well as other inadequacies, the Board finds that the November 2019 VA examination is inadequate for rating purposes. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, these matters must be remanded to correct the pre-decisional duty to assist error. 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current nature and severity of his lumbosacral strain and associated right and left lower extremity radiculopathy. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-ups. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. If unable to opine without speculation, the examiner should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should state whether the Veteran has intervertebral disc syndrome (IVDS) of the lumbar spine, and if so, whether such has been productive of any incapacitating episodes and the duration of such episodes. If IVDS is not present, the examiner must explain this finding. (Continued on the next page) The examiner should also identify any neurologic impairment related to his lumbar spine disability, to specifically include the nature and severity of his right and left lower extremity radiculopathy, as well as any bowel or bladder problems. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.