Citation Nr: 21073618
Decision Date: 12/09/21	Archive Date: 12/09/21

DOCKET NO. 18-16 802
DATE: December 9, 2021

ORDER

Entitlement to service connection for a heart murmur is dismissed.

Entitlement to an increased rating in excess of 20 percent for diabetes mellitus is dismissed.

Entitlement to an earlier effective date prior to February 13, 2015, for the grant of service connection for intervertebral disc syndrome and lumbar spondylosis (back disability) is denied.

Entitlement to an earlier effective date prior to February 13, 2015 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied.

Entitlement to an earlier effective date prior to September 9, 2016 for the grant of service connection for sciatic radiculopathy of the left lower extremity (LLE) is denied.

Entitlement to an increased rating in excess of 10 percent from February 13, 2015 to August 26, 2019 for intervertebral disc syndrome and lumbar spondylosis, is denied.

Entitlement to an increased rating in excess of 20 percent from August 26, 2019 for intervertebral disc syndrome and lumbar spondylosis, is denied.

Entitlement to an increased rating in excess of 20 percent from September 9, 2016 to August 26, 2019 for sciatic radiculopathy of the left lower extremity is denied.

Entitlement to an increased rating in excess of 60 percent from August 26, 2019 for sciatic radiculopathy of the left lower extremity is denied.

Entitlement to an increased rating in excess of 20 percent for sciatic nerve radiculopathy, right lower extremity (RLE) is denied. 

Entitlement to an increased rating in excess of 30 percent from February 13, 2015 to August 26, 2019 for PTSD is denied.

Entitlement to an increased rating in excess of 50 percent from August 26, 2019 for PTSD is denied.

REMANDED

Entitlement to total disability rating based upon individual unemployability (TDIU) prior to August 26, 2016 is remanded.

FINDINGS OF FACT

1. On August 25, 2020 prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the appeal of the Veteran's claim for service connection for heart murmur.

2. On August 25, 2020 prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of the appeal of the Veteran's claim for an increased evaluation in excess of 20 percent for diabetes mellitus.

3. The Veteran submitted a February 2, 2015 claim for service connection for PTSD, and a July 2015 rating decision granted service connection for other specified trauma and stressor related disorder effective February 2, 2015.

4. An October 2019 VA examination documented the Veteran's diagnosis for PTSD, the first confirmed diagnosis for PTSD.

5. An April 1980 rating decision denied entitlement to service connection for a back disability. The Veteran was notified of this decision but did not timely appeal the decision; therefore, the decision became final.

6. The Veteran submitted a February 2, 2015 claim for service connection for a back disability, and a July 2015 rating decision granted service connection for a back disability effective February 2, 2015.

7. The Veteran submitted a September 9, 2016 claim for service connection for radiculopathy of the left lower extremity. A February 2017 rating decision granted service connection for radiculopathy of the left lower extremity effective September 9, 2016.

8. There is no evidence indicating a formal or informal claim for service connection for radiculopathy of the left lower extremity, prior to September 9, 2016.

9. The evidence on record from February 13, 2015 to August 26, 2019 does not show a finding of the Veteran's forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or combined range of motion of the thoracolumbar spine of 120 degrees but not greater than 235 degrees, and no manifestation of muscle spasms or guarding severe enough to result in abnormal spinal contour; no forward flexion of 30 degrees or less even when considering flares and functional impairment on use; ankylosis; or incapacitating episodes of IVDS having a total duration of at least 6 weeks during any 12-month period.

10. The evidence on record from August 26, 2019 does not show a finding of the Veteran's forward flexion of the thoracolumbar spine of 30 degrees or less even when considering flareups and functional impairment on use; ankylosis; or incapacitating episodes of IVDS having a total duration of at least 6 weeks during any 12-month period.

11. For the period from September 9, 2016 to August 26, 2019, the Veteran's   radiculopathy of the left lower extremity was manifested by no more than moderate incomplete paralysis.

12. For the period from August 26, 2019, the Veteran's radiculopathy of the left lower extremity as manifested by no more than severe incomplete paralysis.

13. The Veteran's radiculopathy of the right lower extremity was manifested by no more than moderate incomplete paralysis.

14. The Veteran's PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (characterized by symptoms such as depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events and disturbances of motivation and mood), but without occupational and social impairment with reduced reliability and productivity.

15. The Veteran's PTSD was manifested by depression, anxiety, chronic sleep impairment, restricted affect, irritability, problems with relationships, social isolation, and difficulty in establishing and maintaining effective work and social relationships, resulting in a disability picture that more nearly approximates that of occupational and social impairment with reduced reliability and productivity.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal of the Veteran's claim fpr service connection for heart murmur, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204.

2. The criteria for withdrawal of the appeal of the Veteran's claim an increased evaluation in excess of 20 percent for diabetes mellitus, have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204.

3. The criteria for an effective date earlier than February 13, 2015, for the grant of service connection for PTSD, have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.124a.

4. The criteria for an effective date earlier than February 13, 2015, for the grant of service connection for a back disability, have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.124a.

5. The criteria for an effective date earlier than September 9, 2016, for the grant of service connection for radiculopathy of the left lower extremity, have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.124a.

6. The criteria for a rating in excess of 10 percent for intervertebral disc syndrome and lumbar spondylosis from February 13, 2015 to August 26, 2019, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 5237

7. The criteria for a rating in excess of 20 percent for intervertebral disc syndrome and lumbar spondylosis from August 26, 2019, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 5243.

8. The criteria for a rating in excess of 20 percent for sciatic radiculopathy, left lower radiculopathy from September 9, 2016 to August 26, 2019, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 8520.

9. The criteria for a rating in excess of 60 percent for sciatic radiculopathy, left lower radiculopathy from August 26, 2019, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 8520.

10. The criteria for a rating in excess of 20 percent for sciatic radiculopathy, right lower radiculopathy from August 26, 2019, have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.71a, Diagnostic Code 8520.

11. The criteria for a rating in excess of 30 percent for PTSD from February 13, 2015 to August 26, 2019, have not been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. § 3.102, 3.159, 4.7, 4.124(a), 4.130, DC 9410.

12. The criteria for a rating in excess of 50 percent for PTSD from August 26, 2019 have not been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. § 3.102, 3.159, 4.7, 4.124(a), 4.130, DC 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in active-duty service with the Army from February 1969 to October 1970.

This matter is on appeal from a July 2015 and February 2017 rating decision. The Veteran was afforded an August 2020 hearing before the undersigned Judge; a transcript of the hearing has been associated with the claims record.

The Board notes that during the pendency of the appeal, service connection was granted for radiculopathy of the left and right lower extremities; the evaluation of the left lower extremity radiculopathy was increased to 60 percent in a November 2019 rating decision; the evaluation of the Veteran's back disability was increased to 20 percent in a November 2019 rating decision; and the Veteran's PTSD was increased to 50 percent in a November 2019 rating decision.

As the Veteran has not indicated satisfaction with the increased evaluations, the Board finds the issue of entitlement to an increased rating for the Veteran's radiculopathy of the left and right lower extremity, back disability, and PTSD remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). 

As instructed by Note (1) to the General Rating Formula for Disease and Injuries of the Spine, associated objective neurological abnormalities should be rated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). In other words, radiculopathy is part and parcel of the increased rating claim for the Veteran's lumbar spine disability.

Accordingly, as service connection was granted for radiculopathy in relation to the Veteran's service-connected lumbar spine disability, the Board notes that the issues of entitlement to increased ratings for radiculopathy of the Veteran's lower extremities are part and parcel of the Veteran's appeal for an increased rating for his lumbar spine disability and therefore also before the Board.

The Board notes that the Veteran has submitted a July 2021 10182 form to appeal issues relating to radiculopathy of the left lower extremity decided upon in a February 2021 rating decision. 

However, the February 2021 rating decision is not an initial decision under the AMA. See 38 C.F.R. §§ 3.2400, 19.2. A rating decision granting a higher rating for a disability that is the subject of a pending legacy appeal for an increased rating is generally not an initial decision and is therefore not appealable under the AMA. The caselaw supports the proposition that once a claim for an increased rating is placed in appellate status, the period addressed by a subsequent rating decision granting an increased rating remains part of the pending appeal and cannot be separately appealed by filing a new NOD. See AB v. Brown, 6 Vet. App. 35, 38 (1993) ("Where a claimant has filed [a notice of disagreement (NOD)] as to [a regional office (RO)] decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, thus does not... abrogate the pending appeal, and, hence, no new jurisdiction-conferring NOD may be filed as to that subsequent decision."); see also Hamilton v. Brown, 4 Vet. App. 528, 541 (1993) (holding that once a claim is in "appellate status" by virtue of a previously filed NOD, the claimant may not file an additional NOD which could confer jurisdiction on the United States Court of Appeals for Veterans Claims as to that claim).

As such, the issue for radiculopathy of the left lower extremity remains on appeal under the legacy system.

The Board next notes a claim for a TDIU is part and parcel of an increased rating claim where the Veteran asserts, or the record reasonably raises that his service-connected disabilities prevent him from working or maintaining substantially gainful employment. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). The Veteran has made statements and submitted medical records and evidence to describe how his claimed disabilities interfered with his ability to work and in February 2018 raised a claim for TDIU. Accordingly, the Board finds that the record reasonably raises a claim that the Veteran's service-connected disability prevents him from working or maintaining employment. The Board has therefore characterized the issues on appeal to also include a claim for a TDIU.

The Board also notes that additional private and VA medical records were submitted after the most recent statement of the case issued in January 2018 and September 2019. In cases where a substantive appeal was received on or after February 2, 2013, there is an automatic waiver of initial Agency of Original Jurisdiction (AOJ) review, if the veteran or his representative submits evidence to the AOJ or the Board; however, the automatic waiver does not apply to VA-generated evidence, such as VA examination reports or VA treatment records. Furthermore, an exception to this general rule is when the additional evidence is either duplicative or not relevant to the issue on appeal. 38 C.F.R. § 20.1305 (c). In this case, an automatic waiver of initial AOJ review applies to the private records additionally associated in August 2020, for the Veteran himself submitted those records. As for the VA medical records added in September 2020, an exception to the general rule applies for they are not pertinent to the issue being decided. Thus, the Board may proceed with adjudication.

Dismissal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204.

At the Veteran's August 2020 hearing, the Veteran testified that he would withdraw the issues of service connection for heart murmur and an increased evaluation in excess of 20 percent for diabetes mellitus.

As such, the Veteran has withdrawn the appeal for the issue of entitlement to service connection for heart murmur and for an increased evaluation in excess for 20 percent for diabetes mellitus; accordingly, these issues have been dismissed.

Earlier Effective Date

Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. 

In cases involving direct service connection, the effective date 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 C.F.R. § 3.400 (b)(2)(i).

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400 (o)(2); Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant's file which demonstrates that an increase in disability was "ascertainable" up to one year prior to the claimant's submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues).

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. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. 

Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant's representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015).

There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).

The effective date for a grant of service connection based on the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 ; 38 C.F.R. § 3.400 (q)(1)(ii).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter before the Board, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Posttraumatic stress disorder (PTSD)

The Veteran is currently service connected for PTSD effective from February 13, 2015. The Veteran has appealed to the Board the assigned effective date. The Board notes that the Veteran's service-connected issues was granted in a July 2015 rating decision as an "other specified trauma and stressor related disorder" and not until a November 2019 rating decision was the Veteran's issue recharacterized as PTSD.

In a May 2011 VA medical center (VAMC) initial visit, the Veteran's wife reported the Veteran dreamed a lot about Vietnam; the Veteran stated that he did not recall the dreams "as a rule" and thought he had PTSD. The treating provider noted that the Veteran's PTSD screen was negative. 

In a September 2011 mental health interview, the treating provider found the Veteran's symptoms to bec consistent with minor depression. In a separate followup evaluation, the provider assessed the Veteran with anxiety and to "rule out PTSD."

The Board notes that in a November 9, 2011 VAMC mental health note, the Veteran reported that he was referred by a VA officer to get a "disability rating" and stated that he just wanted an evaluation to determine a disability rating. The provider noted that the Veteran planned to contact service officers to assist in filing disability compensation.

In an August 2014 VA psychiatric consultation, the Veteran stated that he was here "relating to PTSD" and that he was pursing service connection and that service officers told him to come here. The treating provider assessed the Veteran with adjustment disorder and did not meet a diagnosis for PTSD.

Review of the claims record shows on February 13, 2015, the Veteran filed a claim for service connection for PTSD. In a May 2015 VA examination, the examiner diagnosed the Veteran with "other specified trauma and stressor related disorder" but did not find the Veteran's symptoms to meet the diagnostic criteria for PTSD.  A July 2015 rating decision granted service connection for the other specified trauma and stressor related disorder effective February 13, 2015, the date of the Veteran's claim.

In a July 2015 Notice of Disagreement (NOD), the Veteran disagreed with the effective date of "PTSD" and stated he felt that an earlier effective date should have been award; the Veteran did not specify a particular effective date.

In an April 2016 statement from the Veteran, the Veteran stated that he was treated for alcoholism and mood disturbance in 1989 and indicated that "alcohol and cigarettes I received freely in Vietnam by the military" did not help his PTSD and caused him to become addicted to both after service. The Veteran stated that he was unaware of help available from VA after his separation from service and that his wife would had helped him seek help had she known.

The Veteran asserted that because his conditions were caused or aggravated by his experience in Vietnam, he should receive compensation for the years prior to 2015, indicating the period from 1970 to 2015.

In a September 2019 private evaluation, the Veteran was seen to "confirm (or deny) the PTSD diagnosis." The evaluator provided a diagnosis for PTSD and noted that the Veteran "indicated that [VA] has not offered any other diagnoses" and agreed with the assessment. However, the evaluator does not provide any rationale to explain the diagnosis for PTSD or reconcile with the findings of the May 2015 VA examination that did not find the Veteran meet the criteria for PTSD.

In an October 2019 VA examination, the examiner diagnosed the Veteran with PTSD and indicated the diagnosis was a correction of the previous diagnosis. The examiner stated that the Veteran did not meet the full diagnostic criteria for PTSD in the previous examination in 2015; however, the examiner found that the Veteran now currently met all diagnostic criteria for PTSD at this examination.

In an October 2020 private mental evaluation, the evaluator noted that in an April 2016 mental evaluation, the Veteran's testing results suggested moderately severe depression but did not note a diagnosis of PTSD. The evaluator later notes that a March 2020 mental note the Veteran's testing results were positive for PTSD. 

After review of the evidence of record, the Board finds an earlier effective date prior to February 15, 2015 for the grant of service connection for PTSD is not warranted.

Review of the evidence does not demonstrate an informal claim for service connection for PTSD was received within one year after the Veteran's separation from military service in October 1970, so the effective date cannot be the day following his separation from service. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i).

As such, the effective date of compensation benefits, will be the date of the receipt of the initial claim, or date when entitlement arose, whichever came later.

With regard to the date of entitlement for the Veteran's claimed anxiety, the term "date entitlement arose" is not defined in the current statute or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110 (a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400.

For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. It is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis. DeLisio, 25 Vet. App. at 56.

The Board notes that in November 2011 the Veteran was seen at VAMC because service officers told him to come to get a "disability rating" and he planned to contact service officers to assist in filing for disability compensation. In August 2014 the Veteran was seen again stating that he was here relating to PTSD and he was pursuing PTSD. 

However, the Board notes that after the November 2011 and August 2014 VAMC visits, review of the record does not show any claim, formal or informal, to seek service connection. Under the former regulations, VA medical records are not accepted as informal claims where service connection has not been established, since the mere presence of medical evidence does not establish intent on the part of the veteran to seek service connection for a condition. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). Even medical records containing some documentation or discussion of entitlement to benefits have been held not to constitute an informal claim. See King v. Shinseki, 23 Vet. App. 464, 469 (2010) (holding that VA treatment records noting that a veteran "is trying" or "wanted to file" a service connection claim were not sufficient to constitute an informal claim under section 3.155), aff'd 430 Fed. Appx. 890 (unpublished) (Fed. Cir. July 21, 2011).

As such, the Board finds that there was no formal or informal application to apply for service prior to the February 13, 2015 claim for service connection. 

The Board notes that while the Veteran has symptoms relating to PTSD prior to the February 13, 2015 effective date, entitlement for PTSD specifically did not arise until October 2019 when VA examination showed the Veteran did meet the criteria for PTSD, in accordance with the criteria of 38 C.F.R. § 4.125. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (b)(2). Medical treatment records prior to October 2019 VA examination to include the VAMC treatment records and May 2015 VA examination did not diagnosis the Veteran with PTSD or meet the criteria for PTSD.

As such The Board finds the February 13, 2015 claim for service connection for the Veteran's PTSD is "later" than any entitlement may have arisen, and therefore is the appropriate effective date.

In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. The Board finds the preponderance of the evidence is against the Veteran's claim for effective date for his heart condition. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Back disability

The Veteran is currently service connected for intervertebral disc syndrome and lumbar spondylosis effective from February 13, 2015.

Review of the claims record shows an April 1980 rating decision denied entitlement to service connection for a back disability. The Veteran was notified of this decision but did not timely appeal, therefore the rating decision became final.

The Veteran in July 1987 submitted a statement to be considered a claim for service connection for a back disability. A September 1987 rating decision denied entitlement to service connection and noted the submitted evidence did not warrant a change in the prior denial. The Veteran was notified of this decision but did not appeal.

The Veteran on February 13, 2015, filed a claim for service connection for a back disability. A July 2015 rating decision granted service connection and assigned an effective date for February 13, 2015, the date of the received claim.

In an April 2016 NOD, the Veteran requested the date be retroactive to 1971 and asked for compensation for the period from 1971 to 2015. In submitted statements in April, May and September 2016, the Veteran stated that in 1986 a physician evaluated his back symptoms as arising in service and gradually increase in problems since. The Veteran also stated that VA had told him that x-rays of his back and related service records were burned in a fire.

The Board notes that the effective date for an award of compensation based on a reopened claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (q)(2), (r). As the Veteran's previous decisions were not timely appealed and became final, the earliest effective date for service connection is the date of the petition to reopen, which is February 13, 2015. 

The Board notes that earlier effective dates may also be awarded on the finding that clear and unmistakable error (CUE) was committed in a previous final rating decision. However, there is no communication from the Veteran or his representative specifically asserting CUE. Therefore, the Board concludes that the issue of CUE has not been raised.

Therefore, the effective date of his claim for these conditions must be February 13, 2015, the date of receipt of the Veteran's claim to reopen. While the Board is sympathetic to the Veteran's belief that he is entitled to an earlier effective date, there is no basis in the record for assigning an effective date earlier than August6, 2011, for service connection for his right and left knee conditions. The Board is without authority to grant a claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C. § 7104 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994). For these reasons, entitlement to an effective date earlier than February 13, 2015 for the Veteran's back disability, is denied. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.102, 3.400.

Left Lower Extremity Radiculopathy

The Veteran is service connected for left lower extremity with an effective date of September 9, 2016, the date of his claim. However, the Board finds earlier effective date is not warranted for the grant of service connection for left lower extremity radiculopathy. The Veteran has asserts that he had neurological symptoms relating to his back disability prior to the September9, 2016 service connection claim. That may be true. But, the claim of service connection for radiculopathy is "later" than the date any entitlement may have arisen, and therefore is the appropriate effective date here. 

The Board has considered whether the February 13, 2015 claim of entitlement to service connection for a back disability was also a claim of entitlement to service connection for left lower extremity radiculopathy. At that time, a "claim" was defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). Mere presence of evidence in the record of the existence of a disability did not establish an intent to seek service connection. To establish a claim, the Veteran had to assert the claim expressly or impliedly. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) (while the Board must interpret a veteran's submissions broadly, the Board is not required to conjure up issues that were not raised). Indeed, VA's duty to adjudicate all claims reasonably raised does not require VA to anticipate a claim for a particular benefit where no intention to raise it was expressed. See Brannon, supra.

However, the February 2015 service connection claim specifically asserted a back disability with pain going down the right leg, not the left. While the record contained lay evidence at that time indicating possible lower extremity neurological symptoms, the Veteran did not assert service connection for a left lower extremity radiculopathy. The Board also notes that the May 2015 VA examination evaluating the Veteran's back did not find any evidence of radiculopathy and the Veteran did not report any pain in either lower extremities. As such, the February 2015 claim cannot be construed as an unadjudicated claim for left lower extremity radiculopathy, therefore the September 9, 2016 is the correct effective date for the Veteran's left lower extremity radiculopathy.

The preponderance of the evidence is against the claims for an earlier effective date. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102.

Increased Rating

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. 

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 

The Board will consider whether 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, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Back disability

The Veteran is service connected for a back disability evaluated at 10 percent from February 13, 2015 to August 26, 2019 under Diagnostic Code (DC) 5237; and at 20 percent from August 26, 2019 under DC 5243.

The Board notes that during the pendency of the appeal, portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021; however, the diagnostic codes used to evaluate the Veteran's lumbar spine disability was not changed.

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 United States Court of Appeals for Veterans Claims (Court) 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, at 592. Instead, the Mitchell Court 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 (38 C.F.R. § 4.40 ), 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 (38 C.F.R. § 4.45 ). 

A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under 38 C.F.R. § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint." 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Petitti v. McDonald, 27 Vet. App. 415 (2015). 

For purposes of 38 C.F.R. § 4.59, objectively confirmed limitation of motion must be corroborated by a person, either lay or medical professional, and may not be satisfied by the Veteran's own observations. Id. 

The most recent amendment to 38 C.F.R. § 4.71a changed the Diagnostic Codes for spine disorders to 5235 to 5243, and spine disorders are rated under the General Rating Formula for Diseases and Injuries of the Spine. 

Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that a rating of 10 percent is assignable for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. A 20 percent is assignable for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. A 40 percent rating is assignable where forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assignable for unfavorable ankylosis of the entire spine.

Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. 

The rating criteria define normal range of motion for the various spinal segments 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Further, the normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2), as added by 68 Fed. Reg. 51,454 (Aug. 27, 2003). 

Also, the current schedular rating criteria instructs to evaluate intervertebral disc syndrome (IVDS or degenerative disc disease) either under the general rating formula for diseases and injuries of the spine or under the formula for rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation. 

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (in pertinent part): a 10 percent disability rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

Note (1): For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 

The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455 (Aug. 27, 2003).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 (38 C.F.R. § 4.45). 

In a May 2015 VA examination, the Veteran stated that after his separation he went to a private doctor where he was given a back brace with x-rays; the Veteran stated that he never underwent surgery. The Veteran reported flareups and functional impairment when walking half a mile or standing for 15 minutes resulted in pain and required him to rest.

Upon physical examination, the Veteran demonstrated full range of motion (ROM) with pain on flexion and right and left lateral flexion. The Veteran did report pain with weight-bearing.

The examiner found the Veteran's findings to be not medically consistent or inconsistent with flareups and repetitive testing; however, the examiner was unable to estimate ROM without speculation because the Veteran was unable to replicate a flareup at the examination.

The examiner did not find evidence of muscle spasm or guarding, IVDS, or ankylosis.

In an April 2016 NOD, the Veteran sought an evaluation of 60 to 80 percent for his back disability. The Veteran reported that his pain in the back and leg have increased in severity and affected his ability to lie down or sit comfortably. In a September 2016 statement, the Veteran stated that his walking and mobility was severely limited.

In a June 2019 medical treatment record for new patient, the Veteran reported low back pain with radiation down his left leg to his foot. The Veteran stated that he had been placed on disability in 1974 for his back and over the years has been on work restrictions that hindered his work opportunities. The examiner did not measure the Veteran's ROM and did not recommend surgery because the Veteran functioned well.

In a November 2019 VA examination, the Veteran reported that his pain has worsened over the years with a dull ache all the time sharp and shooting pain, and muscle spasms in the back. The Veteran also reported pain in both legs described as numbness and burning.

The Veteran reported flareups of sharp shooting pain down his legs and functional impairment where he was unable to sit, stand, or walk for long and could not be comfortable.

Upon physical evaluation, the Veteran demonstrated 45 degrees flexion with 115 combined ROM. The examiner found the Veteran with pain with weight bearing and found the Veteran's ROM testing to be the same as his active ROM. The examiner noted the Veteran with pain at rest with limited bending. The Veteran was able to perform repetition without loss of motion.

The examiner estimated the Veteran's ROM on repetitive motion to be at 40 degrees flexion and at 75 degrees combined; and on flareups to 35 degrees flexion and 55 degrees combines.

The examiner did not find evidence of guarding, spasm, atrophy, or ankylosis. The examiner found the Veteran with IVDS but with no episodes of incapacitation.

At the August 2020 hearing, the Veteran testified that he has not been able to bend fully in any direction since February 13, 2015. The Veteran stated that he is unable to perform activities of daily living such as tying his shoes, getting dress, cleaning, cooking, and housework. The Veteran noted that he has not been able to reach below his waist for some time.

The Veteran stated that he suffered from flareups and noted that it limited the time he could sit and therefore would need to shift his weight a lot.

In a submitted private October 2020 medical evaluation, the provider documented the Veteran's reports of back pain, weakness and decreased ROM to include numbness in the legs. However, no ROM was measured at this evaluation as the provider indicating the evaluation was based only on review of record.

Upon review of all relevant evidence of record, the Board finds that the disability picture associated with the Veteran's back disability from February 13, 2015 to August 26, 2019 does not meet or more nearly approximate the criteria for an evaluation greater than 10 percent or greater than 20 percent from August 26, 2019.

The Board notes that for a 20 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 

Review of the record from February 13, 2015 to August 26, 2019 does not show the Veteran's forward flexion of the thoracolumbar spine to measure from 30 to 60 degrees, combined range of motion of the thoracolumbar spine at worst 120 degrees but not greater than 170 degrees, or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 

The Board next finds that after review of the evidence since August 26, 2019, the preponderance of the evidence fails to support a rating in excess of 20 percent. 

The Board notes that for a 40 percent evaluation, the Veteran must demonstrate forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a , Diagnostic Code 5237. Such impairment was not documented in the October 2019 VA examination and as forward flexion of his thoracolumbar spine was not limited to 30 degrees or less and the Veteran did not have any type of spinal ankylosis, including in consideration of functional loss due to pain on motion, weakness and fatigability.

There has been no showing of unilateral loss of lateral spine motion in the standing position, severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, abnormal mobility on forced motion, or loss of strength. There was also no evidence of muscle atrophy. Without such pathology, a disability evaluation greater than 20 percent is not warranted.

The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-07. The competent medical evidence reflects that the assigned10 percent from February 13, 2015 to August 26, 2019 and the 20 percent rating from August 26, 2019 properly compensates the Veteran for the extent of functional loss resulting from any such symptoms. 

The Board acknowledges that the Veteran had pain, weakened movement and less movement than normal. This is well documented in the lay and medical evidence. Furthermore, the Board again accepts that the Veteran has functional impairment, pain and limited motion as demonstrated by the VA examinations. See DeLuca, supra. The Board further finds that the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for an evaluation in excess of 10 percent from February 13, 2015 to August 26, 2019 and the 20 percent rating from August 26, 2019.

Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board does not find that the Veteran's functional losses equate to the criteria required for a 40 percent or greater rating under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a; DeLuca. 

With no objective evidence that the Veteran meets the criteria for an increased evaluation based on limitation of motion even considering subjective symptoms such as pain and tenderness, the Board concludes that the greater weight of evidence is against assigning an evaluation in excess of 10 percent from February 13, 2015 to August 26, 2019 and the 20 percent rating from August 26, 2019as contemplated by the holding in Deluca.

After taking into account the medical findings and the lay statements the evidence does not suggest that motion is limited to the requisite degree for a higher rating at any point. Therefore, even with the reports of flare-ups, the Board finds that the overall impairment resulting from the Veteran's back disability would still more closely approximate no more than a 10 percent rating from February 13, 2015 to August 26, 2019 and the 20 percent rating from August 26, 2019.

Regarding an increased evaluation based on incapacitating episodes, the Board notes that under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent disability rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; and a higher rating of 40 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.

The May 2015 VA examiner did not find the Veteran with IVDS. The October 2019 VA examiner found the Veteran with IVDS but with no incapacitating episodes.

Accordingly, the provisions for evaluating intervertebral disc syndrome are also not for application for the Veteran's service-connected lumbar spine disability as either the examiners did not find the Veteran with IVDS or with any incapacitating episodes. See 38 C.F.R. § 4.71, Diagnostic Code 5243.

The Board has considered the Veteran's statements regarding the severity of the Veteran's back disability. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiner's opinion and other evidence of record, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiner's findings and other evidence of record. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

Thus, the weight of the evidence is against the grant of an increased disability evaluation in excess of 10 percent prior to August 19, 2020 and then in excess of 20 percent since August 19, 2020, for the intervertebral disc syndrome and lumbar spondylosis. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. As a preponderance of the evidence is against the award of an increased evaluation for this period of the appeal, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7.

Radiculopathy 

The Veteran is currently service connected for left lower extremity radiculopathy evaluated at 20 percent from September 9, 2016 to August 26, 2019 and then 60 percent from August 26, 2019; and right lower extremity radiculopathy evaluated at 20 percent. Both disabilities are evaluated under Diagnostic Code 8520 

Under DC 8520, paralysis of the sciatic nerve, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a , DC 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.

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120.

In the May 2015 VA examination to evaluate the Veteran's back disability, the examiner did not find evidence of radiculopathy.

In an April 2016 NOD and September 2016 statement, the Veteran reported pain in the left hip and leg that in creased in severity and limited his mobility.

In a February 2017 VA examination for neuropathy, the Veteran insisted that the problem was with his left leg and described severe pain radiating down the back of his left leg with a constant area of numbness. The Veteran described pain that worsened with lifting, walking and sitting; and need to frequently change his posture and was limited to 20 pounds lifting.

The examiner found symptoms of radiculopathy, finding the Veteran with moderate constant pain; intermittent pain; paresthesias and/or dysesthesias; and numbness of the left lower extremity. The examiner did not find any symptoms of radiculopathy in the right lower extremity.

The Veteran demonstrated full strength with a broad base gait, decreased left ankle reflex and decreased sensation in the left foot and toes.

 The examiner found involvement of the left lower extremity sciatic nerve at moderate severity and the right lower extremity to be normal and unaffected.

In a November 2019 VA examination for the Veteran's back, the Veteran reported pain in both legs with numbness and burning, as well as sharp shooting pain down both legs. 

The examiner found symptoms of radiculopathy, finding the Veteran with moderate intermittent pain; mild paresthesias and/or dysesthesias; and moderate numbness affecting the right lower extremity. The examiner found the Veteran with symptoms of severe intermittent pain; moderate paresthesias and/or dysesthesias; and severe numbness affecting the left lower extremity.

The examiner found involvement of the right lower extremity at moderate severity, and involvement of the left lower extremity at severe severity.

At the August 2020 hearing, the Veteran testified the pain at a 7 out of 10 with pain going into both legs down into the foot. The Veteran testified that he is only able to walk short distances before having to sit down because of pain.

In a submitted private October 2020 evaluation, the provider documented the Veteran's reported numbness in the legs and constant pain and weakness. No indication on the severity of radiculopathy in either lower extremity was made by the provider.

After review of the relevant evidence of record, the Board finds that the disability associated with the Veteran's radiculopathy of the right lower extremity does not meet or more nearly approximate the criteria for an evaluation greater than 20 percent.

As noted above, a 40 percent rating is assigned for moderately severe incomplete paralysis involving the sciatic nerve.

Review of the treatment record to include VA examinations in February 2017 and November 2019 show reported symptoms of pain, paresthesias, and numbness; however, the February 2017 examiner only found nerve involvement affecting the left lower extremity none affecting the right lower extremity. The November 2019 examiner only indicated involvement of the right lower extremity at moderate severity. There are no other findings to indicate other involved nerves or to show the severity of the sciatic nerve.

The Board next finds the disability picture associated with the Veteran's radiculopathy of the left lower extremity does not meet or more nearly approximate the criteria for an evaluation greater than 20 percent from September 9, 2016 to August 26, 2019 and then 60 percent from August 26, 2019.

Review of the treatment record from September 9, 2016 to August 26, 2019 to include the February 2017 VA examination show reported symptoms of pain, paresthesias and numbness; however, the February 2017 examiner only found the Veteran with involvement of the left lower extremity at moderate severity. 

Regarding the left lower extremity for the period since August 26, 2019, the Board notes an 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. The November 2019 VA examiner did not indicate any objective evidence of foot drop, paralysis, constant weakness involving the left lower extremity. There are no other findings to indicate other involved nerves or to show the severity of the sciatic nerve.

The Board acknowledges the Veteran's reported complaints and symptoms of his radiculopathy of the right and left lower extremity during the appeal period. However, as a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner's opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiner's findings. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

As such, the Board finds the preponderance of the evidence is against a finding for a rating in excess of 20 percent for radiculopathy of the right lower; a rating in excess of 20 percent for radiculopathy of the left lower extremity from September 9, 2016 to August 26, 2019; and a rating in excess of 60 percent for radiculopathy of the left lower extremity from August 26, 2019.

Posttraumatic stress disorder

The Veteran is currently service connected for PTSD evaluated as 30 percent from February 13, 2015 to August 26, 2019 under DC 9410; and 50 percent from August 26, 2019 under Diagnostic Code 9411.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner's assessment of the level of disability at the time of examination. The rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126.

A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships.

Lastly, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. See 38 C.F.R. § 4.130, DC 9411.

The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117.

In a September 2011 VAMC mental health interview, the Veteran reported that he was currently married and sees friends and family once a month and that he feels loved. The treating provider found the Veteran with symptoms consistent with minor depression and a history of depression. The Veteran reported that he was unemployed but also a pastor for a church.

In a separate September 2011 VAMC mental health evaluation, the Veteran reported that following his separation from service he dealt with claustrophobic feelings and paranoia for years to include a hospitalization in 1989 for 33 days.

The Veteran's spouse reported that the Veteran's dreams were "up and down" to include instances where he would either scream or sometimes strike out.

The Veteran reported being married for the past 37 years with 3 children and another child from a previous marriage. The Veteran stated that he talks with his siblings but were not close.

In an August 2014 psychiatric consultation, the Veteran reported a first marriage that lasted 3 years and his current marriage since August 1974. The Veteran reported a good relationship with his wife and a close relationship with his children and grandchildren.

The Veteran also reported that he makes friends easily with a few close friends and stated that he "has to be with people."

The Veteran stated that after separation from service, he worked various jobs relating to automobiles and was currently working a full-time seasonal job cutting and hauling lumbar.

The Veteran reported that he used to drink daily that made him irritable; the Veteran noted that his wife had left and later reconciled and he did marriage counseling along with an alcohol treatment program in August 1989. The Veteran stated that he did not have any other mental health treatment.

The Veteran reported symptoms of nightmares for 20 to 30 years but noted that the past 10 years were more work-related dreams and that he has not had a Vietnam-related nightmare in the past 6 months. The Veteran stated having a depressed mood that he attributed to life-related stress such as losing money in a business venture. The Veteran denied issues with interactions or socialization; losing temper; concentration, attention or memory; or suicidal ideation.

The treating provider found the Veteran's symptoms to be of mild and transient severity.

The Veteran was afforded a May 2015 VA examination. The Veteran reported that he was not close to his remaining siblings but gets along well with his wife and children. The Veteran stated that he has friends and socializes to include going to church.

The Veteran stated that he worked a number of jobs to include working in an auto shop but moved due to alcoholism. The Veteran reported that he currently works as an owner of a trucking company.

The Veteran denied having any mental health treatment other than visits in 2011 and 2014; the Veteran did note that he was in an inpatient alcohol program in 1989.

The Veteran reported that his main issue was with sleep with the occasional nightmare. The examiner found the Veteran with symptoms of depressed mood, chronic sleep impairment, mild memory loss, and disturbance of motivation and mood.

The Veteran was observed to be casually dressed, talkative and pleasant with a mood within normal limits. The Veteran demonstrated good insight and judgement with no thought disorder.

The examiner found the Veteran's symptoms not severe enough to interfere with occupational functioning and relatively mild impairment in current social functioning.

In an April 2016 NOD, the Veteran reported symptoms of chronic sleep impairment and nightmares that interfered with sleep. The Veteran stated that symptoms PTSD "can revert" and noted that during a recent hospitalization he suffered from depression, anxiety, paranoia and apprehension.

In a separate April 2016 psychiatric note, the Veteran requested medication for insomnia and anxiety. The Veteran was observed to be alert and oriented with appropriate mood and affect. The Veteran demonstrated logical thought, fair insight and judgement, and denied hallucinations.

In May 2016 the Veteran reported his main problem was insomnia and stated that his depression and anxiety made it difficult to interact at home and at work. In a September 2016 statement the Veteran stated he struggled for years of paranoia, depression, nightmares and alcoholism that resulted in 3 separations from his wife and children.

In an April 2018 statement from his wife, the Veteran's spouse stated it was not until after their marriage in 1974 that she found about the Veteran's dreams with struggles in bed or fighting in his sleep. The Veteran's wife noted that they attended family and separated 2 to 3 times unaware that VA could help. The Veteran's wife stated that the Veteran was able to stop his drinking but found it difficult to participate in social activities due to anxiety and paranoia.

In a May 2018 statement from the Veteran's child, the Veteran's child noted their observation of the Veteran's struggles with night terrors, violence and alcoholism. The Veteran's child stated the Veteran also struggled to work due to problems working with others and that the Veteran's wife supported the family during the periods which the Veteran did not.

The Veteran submitted a September 2019 private medical mental evaluation. The Veteran reported occasional contact with his siblings and daily contact with his children; the Veteran acknowledged several separations during his marriage due to PTSD and he was in a rehabilitation clinic for 30 days in 1989.

The private provider stated that it was "quite clear [the Veteran's] PTSD is severe" but did not provide any rationale or specific reference to what symptoms supported this finding.

The Veteran was afforded an October 2019 VA examination. The Veteran reported a marriage since 1974. The Veteran reported continued problems getting along with others since his separation from service and that he continued to be "bullied throughout his lifetime" and experienced paranoia since Vietnam.

The examiner found the Veteran with symptoms of anxiety; suspiciousness; chronic sleep impairment; and difficulty establishing and maintaining relationships.

The Veteran was observed to be appropriately groomed with euthymic mood and appropriate affect. The examiner found the Veteran's attention, orientation and concentration to be normal with no difficulties with recent or remote memory. The Veteran denied hallucinations.

At the Veteran's August 2020 hearing, the Veteran's representative stated that the Veteran's testimony of his symptoms applied to the period between February 13, 2015 to August 26, 2019.

The Veteran testified to having depression described as a "lackadaisical attitude.... didn't feel like I was participating in life." The Veteran stated having low energy, becoming fatigued easily, and becoming a more nervous eater. The Veteran stated that he would get crying spells once every other month.

The Veteran reported having thoughts of suicide three or four times a year but stated that he never acted on them. When asked by the representative as to why the Veteran never sought help from VA for such thoughts, the Veteran answered that "every person's reality is different...I just consider it a part of my life."

The Veteran next stated that he would need to be reminded to take care of his personal hygiene. The Veteran's wife testified that she would need to remind the Veteran at times that he would need to take a bath "it's been much too long." The Veteran's wife stated that during social gatherings the Veteran at times would disappear or go into an office area and close the door. The Veteran's wife also noted that at times the Veteran would not communicate and isolate himself.

The Veteran next testified that regarding anger and irritability, "anything unexpected ... could be a very small thing" could set him off." The Veteran's wife described the Veteran mainly expressed his anger verbally and this would occur five times a day. The Veteran stated that he would avoid others at times to avoid conflict.

The Veteran stated that "I really didn't have a career" that he changed jobs many times over the years; the Veteran indicated that he had been fired before due to his anger and irritability.

The Veteran's wife described issues with attention and concentration where the Veteran while watching television constantly switches all the time. The Veteran described periods occurring once or twice every three to four months of disorientation where he would sometimes lose focus going down the road and then 'woke up...think, how I get there." 

The Veteran described panic attacks occurring as frequent as three to four times a week to as low as three or four times a month.

The Board notes that when the Veteran's representative asked the Veteran whether the severity of his PTSD had worsened or stayed the same since February 2015, the Veteran answered that the severity stayed the same.

The Veteran submitted an October 2020 private mental evaluation and impairment questionnaire.

In the questionnaire, the treating provider found the Veteran with deficiencies in family relations; deficiencies in mood; difficulty adapting to stressful circumstances; intrusive recollection of traumatic experience; depression affecting the ability to function independently; and unprovoked hostility and irritability.

The same provider did not find the Veteran with neglect of personal appearance and hygiene; grossly inappropriate behavior; special disorientation; memory loss; or suicidal ideation.

The provider found the Veteran's impairments produced "good days" and "bad days" and would cause the Veteran to be absent from work more than three times a month.

The Board notes that when asked to explain the basis for their conclusions, the provider answered, "clinical interview, records review, and mental status exam".

In the followup report, the provider noted that following the Veteran's reported stressors in service, such experiences took a "gradually increasing toll" and continue to erode the Veteran's ability to function and resulting in his current emotional state.

The provider noted the Veteran had only gone to the emergency room without hospitalization on one occasion due to anxiety attack during service; the Veteran next reported that his first inpatient hospitalization for psychological difficulties was a 1989 participation in an alcohol rehabilitation program.

The provider indicated that subsequently the Veteran has had "intermittent treatment for mental health difficulties; the Veteran reported that he is not undergoing counseling or psychotherapy and his treatment mainly consists of medication.

The Veteran reported that he was last employed in 2011 working as a truck driver for 4 years. The Veteran stated that he struggled to have adequate control over his psychiatric problems but resigned from the job due to "environmental allergies to the untidy and cigarette-odor of trucks."

The Veteran reported continued significant emotional distress to include general anxiety and tension; loss of interest and pleasure in activities; and interpersonal irritability. The Veteran indicated that he has become withdrawn and asocial, and has noticed that he is easily made anxious and highly irritable resulting in becoming excessively and disproportionately angered without reasonable provocation.

The provider observed the Veteran to be pleasant but tense. The Veteran demonstrated intact thinking, constricted affect, significant tension in mood. and unimpaired consciousness. The Veteran's attention and concentration were found to be adequate and oriented. The provider did not find the Veteran with thought disorder, hallucinations, or delusion. The provider did not find evidence of suicidal or homicidal thoughts or intentions.

The provider found the Veteran's overall ability to deal with the stresses of work to eb moderately markedly impaired and found the Veteran's overall level of psychological disorder to be moderately impaired.

In a separate October 2020 private mental evaluation held by a second provider, Veteran was seen for a review of the medical record to determine his ability to maintain gainful employment prior to August 26, 2019. The provider that they did not personally meet the Veteran in creating this evaluation.

The provider noted mental health findings from April 2016, March 2020 and September 2019 noting the Veteran's reports of difficulty with concentration, negative impact on the relationship with his wife and difficulty taking care of things and getting along with others.

The provider found the Veteran only able to tolerate low work stress and factors of decreased concentration, decreased ability to work with others and hopelessness to affect the Veteran; when asked to explain the findings, the provider answered "psychiatric reports" without further rationale. 

After review of the evidence of record, the Board finds the evidence of record does not support a finding that the Veteran has had symptoms severe enough to warrant an evaluation in excess of 30 percent for the period from February 13, 2015 to August 26, 2019; and in excess of 50 percent from August 26, 2019.

As noted above, a 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

Review of the VA examinations of record show the examiners finding the Veteran's symptoms at most resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation, which is the criteria for 30 percent. 

The Veteran's symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events are contemplated under the rating criteria as emblematic of PTSD which causes occasional occupation and social impairment, thus warranting a 30 percent rating for the period from February 13, 2015 to August 26, 2019. DC 9411.

For the period since August 26, 2019,  the Board finds that the Veteran's posttraumatic stress disorder (PTSD) by occupational and social impairment with reduced reliability and productivity due to such symptoms as: anxiety, chronic sleep impairment, problems with relationships, and difficulty adapting to stressful circumstances, more nearly approximating a 50 percent rating under Diagnostic Code 9411. 38 C.F.R. § 4.130. However, the evidence does not show that the Veteran was experiencing panic attacks, suicidal ideation, impaired impulse control or near-continuous panic or depression affecting the ability to function independently, appropriately and effectively.

Significantly, the Veteran's social and occupational functioning appeared to be only minimally reduced due to his symptoms. The Veteran has reported that he continues to be married to his wife since 1974 and in the May 2015 VA, examination reported that he gets along with wife and children, goes to church, and has friends and socializes. The Veteran also reported working as an owner of a trucking company and indicated he wished to keep working for several more years. In the October 2020 private evaluation, the Veteran reported struggles with psychiatric symptoms during his job as a truck driver; however, the Veteran stated that he resigned in 2011 due to allergies and not because his psychiatric symptoms. 

Review of the record from August 2019 does not contain evidence of symptoms of increased severity or additional impairment, such as suicidal ideation; obsessional rituals; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. The frequency, severity, and duration of psychiatric symptoms described by the Veteran does not approximate those listed as warranting a 70 percent evaluation from August 26, 2019.

The Board notes the Veteran testified at the August 2020 hearing to having suicidal thoughts; however, review of the record shows the Veteran has otherwise consistently denied any suicidal ideation, intent or plan. In the submitted October 2020 private mental evaluations, the providers did not find the Veteran with suicidal ideation. The Veteran has testified in August 2020 and October 2020 private evaluations to have increased irritability from 2015 onwards to include instances of losing his temper; however, review of the record from February 13, 2015 to August 26, 2019 does not show findings to show the level of impaired impulse control.

The Veteran testified in August 2020 to having issues with personal hygiene, concentration, attention and orientation; however, the October 2019 VA examination and the subsequent October 2020 private evaluation did not find evidence to document or indicate the Veteran with such problems with personal hygiene, concentration, attention or orientation. The Veteran testified to having panic attacks 3 to 4 times, however, the October 2019 VA examination and October 2020 private evaluation did not find the Veteran with panic attacks nor did the Veteran report as such at either evaluation.

The Board notes that the Veteran's testified symptoms at the August 2020 hearing were indicated to apply only for the period from February 13, 2015 to August 26, 2019. The Board also notes that when asked whether his symptoms had increased since February 2015, the Veteran answered that they did not and had only remained the same since.

The Board has considered the Veteran, his wife and son's statements regarding the severity of the Veteran's posttraumatic stress disorder (PTSD). However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the evidence of record as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions are outweighed by the evidence of record. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).

As such, the evidence of record from February 13, 2015 to August 26, 2019, does not show the Veteran's PTSD resulted in a picture of occupational and social impairment in most areas warranting a 50 percent evaluation or higher or 70 percent from August 26, 2019.

REASONS FOR REMAND

The Board finds that remand is warranted for additional development.

The Veteran asserts entitlement to TDIU.

The Board notes that the Veteran's combined rating from his service-connected disabilities is at 100 percent from August 26, 2019 but at 60 percent from September 9, 2016. Consequently, the Board need not consider whether his combination of service-connected disabilities warrants a 100 percent TDIU rating as this combination already warrants a 100 percent combined schedular rating. See 38 C.F.R. § § 4.16 (a). However, the Board must still consider whether a TDIU is warranted for the portion of the appeal period prior to August 26, 2019.

In conclusion, entitlement to a TDIU is dismissed as moot from August 26, 2019. The Board has recharacterized the TDIU issue on appeal accordingly. Therefore, the issue on appeal before the Board is whether the Veteran has been precluded from obtaining or maintaining a substantially gainful occupation as a result of his service-connected disabilities prior to August 26, 2019.

The Board notes that total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. 38 C.F.R. § 3.340. 

Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 3.340, 3.341, 4.16(a).

The Board notes that the Veteran did not qualify for a schedular TDIU prior to August 26, 2019 as he did not have at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a).

Although a veteran fails to meet the disability rating threshold under 38 C.F.R. § 4.16 (a), an extraschedular disability rating for TDIU may nevertheless be warranted where the veteran is unemployable due to service-connected disabilities. 38 C.F.R. § 4.16 (b) (2019); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Should the Board discern a plausible basis for an extraschedular TDIU, it must refer the matter to the Director of Compensation Service for an initial decision before the Board may decide the issue. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). 

In that regard, the Board notes the Veteran has asserted TDIU prior to August 26, 2019 and has submitted private medical evaluations and opinions to indicate that he has not be able to work prior to that date due to his service-connected disabilities.

As such, the Board finds that the evidence raises a question as to whether the Veteran was capable of maintaining substantially gainful employment prior to August 26, 2019, in spite of not meeting the schedular requirement for a TDIU during that time. As the Board is prohibited from awarding an extraschedular TDIU in the first instance, a remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service. See Wages, 27 Vet. App. at 235-39.

The matters are REMANDED for the following action:

1.  Obtain and associate with the claims file all updated treatment records.

2. After completing any development deemed necessary, the AOJ should refer the case to the VA Director of Compensation Services for an extraschedular consideration for TDIU prior to August 26, 2019. The threshold determination must be supported with a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue in accordance with 38 C.F.R. § 4.16(b).

3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. 

If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Yang, Attorney-Advisor

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.