Citation Nr: 21071414 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-18 756 DATE: November 30, 2021 ORDER Entitlement to an effective date of September 7, 2012, but no earlier, for the grant of service connection for left lower extremity radiculopathy is granted. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for lumbosacral strain-myositis with degenerative joint disease of the lumbosacral spine is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. On September 7, 2012, VA received the Veteran's informal claim for service connection for left lower extremity radiculopathy; the Veteran filed a notice of disagreement to the January 2013 rating decision denying the claim, thereby timely pursuing the service connection claim that was subsequently granted by a March 2015 rating decision. 2. The Veteran's left lower extremity radiculopathy manifested as no worse than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 7, 2012, but no earlier, for the award of the grant of service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria have not been met for a rating in excess of 20 percent for left lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.124a Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1971 to June 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from June 2012 and March 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in November 2013 and October 2015. The Veteran's claims were remanded for the issuance of a Statement of the Case. The case is now again before the Board for further appellate action. 1. Entitlement to an effective date of September 7, 2012, but no earlier, for the grant of service connection for left lower extremity radiculopathy is granted. A March 2015 rating decision granted service connection for left lower extremity radiculopathy secondary to the Veteran's service-connected lumbosacral strain-myositis with degenerative joint disease of the lumbosacral spine. The effective date was November 21, 2014, the date the RO received the Veteran's VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran contends that he is entitled to an effective date earlier than November 21, 2014 for service connection of his left lower extremity radiculopathy. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on an original claim or a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. A June 2012 granted service connection for the Veteran's lumbosacral strain-myositis with degenerative joint disease of the lumbosacral spine and assigned a rating of 20 percent, effective July 28, 2004. An October 2011 VA thoracolumbar spine conditions examination found that the Veteran had moderate constant pain and severe numbness in his left lower extremity. The examiner did not report the severity of radiculopathy for the left extremity. On September 7, 2012, the Veteran submitted a notice of disagreement, which included an informal claim for service connection for left lower extremity radiculopathy secondary to the Veteran's service-connected back disability. A January 2013 rating decision denied the service connection claim for left lower extremity radiculopathy. The decision indicates that the claim for service-connected compensation was received on September 7, 2012. In December 2013, the Veteran's representative submitted a notice of disagreement to the January 2013 rating decision and requested a de novo review by a Decision Review Officer. Prior to the issuance of a Statement of the Case or a review by a Decision Review Officer, a March 2015 rating decision granted service connection for left lower extremity radiculopathy secondary to the Veteran's service-connected lumbosacral strain-myositis with degenerative joint disease of the lumbosacral spine. The effective date was November 21, 2014, the date the RO received the Veteran's VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. A careful review of the record reveals that on September 7, 2012, VA received the Veteran's informal claim for service connection for his left lower extremity radiculopathy. The Veteran filed a timely notice of disagreement to the January 2013 rating decision denying service connection for his left lower extremity radiculopathy. Prior to the issuance of a Statement of the Case or a review by a Decision Officer, a March 2015 rating decision granted service connection. The record does not include an earlier communication received by VA, either formal or informal, indicating an intent to apply for service connection for left lower extremity radiculopathy. 38 C.F.R. § 3.400(b)(2)(i). Accordingly, the Board finds that an earlier effective date of September 7, 2012, but no earlier, is granted for the grant of service connection for the Veteran's left lower extremity radiculopathy. In summary, an effective date of September 7, 2012, but no earlier, for the award of the grant of service connection for the Veteran's left lower extremity radiculopathy is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is denied. A March 2015 rating decision granted service connection for left lower extremity radiculopathy and assigned a rating of 20 percent, effective November 21, 2014. An earlier effective date of September 7, 2012 has been granted herein. The Veteran contends that he is entitled to a higher rating due to the severity of symptoms related to his left lower extremity radiculopathy. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will consider entitlement to staged ratings to account for variations in the severity of a disability over time. Id. The Veteran's left lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under this code, 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. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Veteran was provided a VA examination of his thoracolumbar spine in October 2011. The Veteran reported having low back pain that radiates to his left hip. He also described having numbness of his legs and feet. An assessment of symptoms for the Veteran's left lower extremity reported moderate constant pain, no intermittent pain, no paresthesias or dysesthesias, and severe numbness. The examiner did not report the severity of radiculopathy for the left lower extremity. The Veteran was provided another VA examination of his thoracolumbar spine in February 2015. An assessment of symptoms for the Veteran's left lower extremity reported moderate constant pain and moderate numbness. The examiner reported the radiculopathy of the left lower extremity involved the left sciatic nerve. The severity of the radiculopathy was characterized as moderate. The Board gives great probative weight to the February 2015 examination findings. The findings were based on an in-person examination of the Veteran's radiculopathy. Considering all the evidence, the Board finds the Veteran's radiculopathy symptoms more consistent with moderate incomplete paralysis. The evidence does not support that the Veteran's radiculopathy of the left lower extremity produced moderately severe or severe incomplete paralysis to warrant a rating in excess of 20 percent. Moreover, the regulations state that when the involvement is wholly sensory, the rating should be, at most, the moderate degree. In consideration of the above, the Board finds that the preponderance of the evidence weighs against a disability rating for the Veteran's left lower extremity radiculopathy in excess of 20 percent. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating as described above, is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain-myositis with degenerative joint disease of the lumbosacral spine is remanded. A June 2012 rating decision granted service connection for lumbosacral strain-myositis with degenerative joint disease of the lumbosacral spine and assigned a 20 percent rating, effective July 28, 2004. An increased rating for the Veteran's back disability was denied by January 2013 and March 2015 rating decisions. The Veteran was afforded VA thoracolumbar spine conditions examinations in December 2004 and February 2015. At both examinations, the Veteran reported experiencing severe flare-ups of back pain. The Board finds that these examinations were inadequate as the examiners failed to estimate the degree of additional range-of-motion loss during flare-ups. If an examination does not take place during a flare-up or after repeated use, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran's lay statements. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or after repeated use will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication that the December 2004 examiner made any attempt to ascertain adequate information from relevant sources to provide the requested opinions. The December 2004 and February 2015 examinations also did not comply with the holding of the United States Court of Appeals for Veterans Claims in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to 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. The examiners failed to include range of motion testing in passive motion, weight-bearing, and non-weight-bearing circumstances. Accordingly, a remand is warranted for a new examination of the Veteran's thoracolumbar spine to conduct proper range of motion testing and properly assess the severity of the disability. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran's claim for entitlement to TDIU is remanded as intertwined with the Veteran's claims for entitlement to increased ratings for the Veteran's service-connected thoracolumbar spine that is also being remanded herein. As such, the claim for a TDIU must be readjudicated on remand following the adjudication of the other claim remanded by the Board. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Schedule the Veteran for a VA examination to assess the current severity of his service-connected thoracolumbar spine disability. The Veteran's claims file, to include a copy of the remand, must be made available to the examiner along with any other information the medical professional deems pertinent 4. The examiner should conduct range of motion testing of the Veteran's thoracolumbar spine (expressed in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing. If pain on motion is observed, the examiner should indicate the point at which pain begins. Any pain, weakened movement, excess fatigability or incoordination on movement must be noted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain the basis for this decision. 5. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his thoracolumbar spine due to pain or other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner concludes that an estimate of the range of motion during flare-ups cannot be provided without resorting to mere speculation, the examiner must support that opinion with a full and complete explanation as to why the examiner cannot provide the requested opinion without resort to mere speculation. 6. After the development described above, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. If any determination remains unfavorable to the Veteran, 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. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.