Citation Nr: 21067098 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-28 611A DATE: November 3, 2021 ORDER An earlier effective date for the grant of service connection for left lower extremity radiculopathy (LLER) is denied. REMANDED An earlier effective date for the grant of service connection of right lower extremity radiculopathy (RLER) is remanded. An initial rating higher than 10 percent from August 20, 1975 and higher than 20 percent from August 23, 2011, for lumbar spine scoliosis, degenerative disc disease, and lumbar strain (hereinafter back disability) is remanded. An initial rating higher than 20 percent for LLER is remanded. An initial rating higher than 20 percent for RLER is remanded. Total disability evaluation due to individual unemployability (TDIU) is remanded. FINDING OF FACT As a matter of law an effective date for LLER cannot be granted earlier than September 23, 2002. CONCLUSION OF LAW The criteria for an effective date earlier than September 23, 2002, for the award of service connection for LLER are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from May 1972 to August 1975 and from November 1990 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Earlier Effective Date LLER The Veteran is seeking an earlier effective date for the grant of service connection for LLER. For the following reasons, the Board finds that an earlier effective date is not available. Generally, except as otherwise provided, the effective date of an award of compensation based on an original claim will be 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, the effective date 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(b)(2)(i). Service connection was granted in an October 2011 rating decision for radiculopathy in the Veteran's left lower extremity. This grant stemmed from a September 2006 claim for service connection for a back disability. The effective date assigned was the date when the rating schedule was amended to allow for separate and compensable evaluations for neurological manifestations of spine disabilities. On September 23, 2002, the rating schedule was amended to allow for separate ratings for neurological manifestations of spine disabilities. See 67 Fed. Reg. 54,345 (Aug. 22, 2002); 38 C.F.R. § 4.71a. Prior to this date, the rating schedule did not allow for separate ratings for neurological manifestations of spine disabilities. A separate rating was granted for the manifestations of the Veteran's LLER that was secondary to his back disability. As the separate rating stems from the Veteran's claim for his back disability, and the rating schedule did not allow for a separate rating for neurological manifestations of spine disabilities, the Board cannot award an effective date earlier than the date the rating schedule was amended to allow for the separate rating. As such, an earlier effective date for LLER is denied as a matter of law. REASONS FOR REMAND Earlier Effective Date for RLER The currently assigned effective date for the Veteran's RLER is the date of a letter from the Veteran's non-VA physician stating that the Veteran suffers from lumbar radiculopathy. The physician also states that the Veteran has been a patient at their office since 1984. VA has not attempted to obtain these records. These records could include an earlier date for the diagnosis of RLER. As such, a remand is required to allow VA to obtain authorization and request these records. Back Disability While the record contains contemporaneous VA examinations regarding the Veteran's back disability, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin,26,34-36 (2017). The examinations do not contain passive range of motion measurements or pain on weight-bearing testing. The examiner also did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups. As such, a remand is necessary to obtain a new examination. Higher Rating for LLER Higher Rating for RLER The examination for the Veteran's back disability also could reveal the current severity of the Veteran's bilateral lower extremity radiculopathy. Because a decision on the remanded issue of a higher rating for a back disability could significantly impact a decision on the issues of a higher rating for bilateral lower extremity radiculopathy, the issues are inextricably intertwined. A remand of the claims for a higher rating for left and right lower extremity radiculopathy is required. TDIU In a March 2012 notice of disagreement, the Veteran's representative raised the contention that the Veteran is unable to work due to his service-connected disabilities. This raises a claim for TDIU that is included with his increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Accordingly, the Board assumes jurisdiction over a claim for TDIU. Because a decision on the remanded issues of an earlier effective date for right lower extremity radiculopathy, higher rating for a back disability, and higher rating for left and right radiculopathy could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Family Medicine at Greenhill, PA. Make two requests for the authorized records from Family Medicine at Greenhill, PA, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability and left and right lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of a higher rating for left and right lower extremity radiculopathy and TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.