Citation Nr: 21074877 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-48 345 DATE: December 16, 2021 ORDER Entitlement to a 40 percent rating for a back disability effective August 1, 2013, is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an effective date earlier than July 22, 2014, for right lower extremity radiculopathy is denied. REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to a rating greater than 10 percent prior to October 28, 2014 for a right knee disability and greater than 30 percent thereafter is remanded. FINDINGS OF FACT 1. Affording the Veteran the benefit of doubt, his back disability manifested a range of motion (ROM) of 30 degrees or less during a flare-up of symptoms beginning August 1, 2013. 2. The preponderance of the evidence is against finding that the Veteran is entitled to an effective date earlier than July 22, 2014 for the grant of service connection for right lower extremity radiculopathy. CONCLUSIONS OF LAW 1. Beginning August 1, 2013, the criteria for entitlement to 40 percent rating, but no higher, for a back disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for entitlement to an effective date earlier than July 22, 2014, for right lower extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2000 to September 2004. This matter comes to the Board of Veterans' Appeals (Board) from a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The Board notes that Veteran's initial claim for service connection for the right knee addressed in the December 2013 rating decision that granted service-connection and assigned a 10 percent rating, originally filed in August 2013, remains pending. See 38 C.F.R. § 3.156 (b); see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). Therefore, the claim for an earlier effective date for a 30 percent disability rating for a right knee disability is recharacterized as above to reflect that the Veteran is appealing the initial 10 percent disability rating assigned in the December 2013 rating decision. 1. Entitlement to a rating greater than 20 percent prior to September 18, 2018 for a back disability and greater than 40 percent thereafter Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's back disability has been rated under DC 5242 for a lumbosacral strain with degenerative arthritis of the spine. Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, DC 5242. Under the General Rating Formula for Diseases and Injuries of the Spine a 100 percent rating is warranted for ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or combined range of motion of the entire thoracolumbar spine not greater than 120 degrees; or, if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. Under notes to the rating formula: Note (1) any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2): (see also Plate V.) 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. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80 (1997). The provisions of 38 C.F.R. § 4.59 contain additional guidelines for evaluating musculoskeletal disability, but are inapplicable where, as here, the disability is already rated at a compensable level. Vilfranc v. McDonald, 28 Vet. App. 357 (2017). Additionally, the Veteran has intervertebral disc syndrome (IVDS), which is evaluated either under the General Rating Formula for Disease and Injuries of the Spine or Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Analysis The Veteran contends that his back disability warrants a higher evaluation than 20 percent prior to September 18, 2018 and greater than 40 percent thereafter. In August 2013, the Veteran submitted his increased rating claim. The Veteran was given a VA examination in October 2013. The Veteran's back was found to have range of motion (ROM) of forward flexion of 0 to 38 degrees and with a combined ROM of 102 degrees. The examiner reported that the Veteran's ROM was unchanged after repetitive use testing. However, the examiner did not provide any estimated ROM the Veteran experienced during flare-ups. Instead, the examiner stated that the Veteran's back disability could significantly limit functional ability during flareups or when the joint is used repeatedly over a period of time. The Veteran did not have any ankylosis. The examiner also noted that the Veteran had IVDS with incapacitating episodes of less than once per week. The Veteran's back did not manifest any ankylosis. The Veteran was given a VA examination in October 2014. The Veteran reported that has developed increased pain which can wake him up at night. The Veteran further stated he has constant lower back pain, which radiates down his right leg that averaged a 7 to 8 out of 10 in intensity. The Veteran stated that his flare-ups occur during prolonged standing, bending. The Veteran's back was found to have ROM of forward flexion of 0 to 38 degrees and with a combined ROM of 105 degrees. The examiner reported that the Veteran's ROM was unchanged after repetitive use testing. The examiner did not provide any estimated ROM the Veteran experienced during flare-ups. Instead, the examiner stated that the Veteran's back disability could significantly limit functional ability during flareups or when the joint is used repeatedly over a period of time. The examiner also noted that the Veteran had IVDS with no incapacitating episodes. The Veteran's back did not manifest any ankylosis. The Veteran was given a VA examination in December 2017. The Veteran reported to the examiner that his pain has gotten worse. Reports having injection in lower back. He denies any surgeries and stated his back is worse with use. The Veteran's back was found to have ROM of forward flexion of 0 to 60 degrees and with a combined ROM of 155 degrees. The examiner reported that the Veteran's ROM was unchanged after repetitive use testing. The examiner did not provide any estimated ROM the Veteran experienced during flare-ups. The examiner also opined that that the Veteran's back disability was functionally impacted if he had tasks that involve prolonged walking or standing and repeat bending, kneeling and twisting. The examiner also noted that the Veteran had IVDS with no incapacitating episodes. The Veteran's back did not manifest any ankylosis. In November 2018, the Veteran submitted a Disability Benefits Questionnaire (DBQ). The Veteran's back was found to have ROM of forward flexion of 0 to 45 degrees and with a combined ROM of 140 degrees. The Veteran's ROM was unchanged after repetitive use testing. During flare-ups the Veteran's ROM was estimated to be a forward flexion of 0 to 30 degrees and with a combined ROM of 100 degrees. The Veteran did not have ankylosis. He wears a brace and uses a heating pad regularly. He also had IVDS without any incapacitating episodes. The Veteran's back did not manifest any ankylosis. Following the November 2018 VA examination, the Agency of Original Jurisdiction (AOJ) increased the Veteran's rating to 40 percent for his back disability in a December 2018 rating decision. The Board finds that the Veteran is entitled to a 40 percent rating for his back disability effective August 1, 2013, the date the Veteran submitted his initial increased rating claim. The Board finds the November 2018 private DBQ more probative than the prior VA examinations. The prior VA examinations acknowledged that the Veteran experienced a reduction in his ROM during flare-ups but did not provide an estimate of what the Veteran's ROM during flare-ups would be. The November 2018 private DBQ estimated the Veteran's ROM during flare ups to have a forward flexion of 30 degrees. This corresponds with a 40 percent rating. 38 C.F.R. § 4.71a, DC 5242. Although the Veteran is also diagnosed with IVDS, the rating for limitation of motion provides for a higher rating for the Veteran than the one report during the Veteran's August 2013 VA examination where it was reported that the Veteran had an incapacitating episode lasting less than once per week. However, the record does not support that any physician prescribed bedrest for the Veteran's IVDS as defined by 38 C.F.R. § 4.71a, DC 5243, Note (1). A higher 50 percent rating is also not warranted. At no time during the period on appeal did the Veteran's back disability manifest any ankylosis. The Board acknowledges the Veteran's statements that his back disability has worsened. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him or his medical records during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective observations. In summary, the preponderance of evidence shows that beginning August 1, 2013, the Veteran is entitled to a 40 percent rating, but no higher, lumbosacral strain with degenerative arthritis of the spine. 2. Entitlement to an effective date earlier than July 22, 2014, for right lower extremity radiculopathy Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 3.400(b)(2). Except as otherwise provided, the effective date for the assignment of an increased evaluation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The applicable statute specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date. 38 U.S.C. § 5110(b)(2). However, if the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of the claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 19 Vet. App. 125 (1997). Effective March 24, 2015, VA amended its regulations regarding claims. The amendment requires claims to be filed on standard forms, eliminates constructive receipt of claims, and eliminates informal claims. See 79 Fed. Reg. 7660 (Sept. 25, 2014). This includes eliminating the provisions of 38 C.F.R. § 3.157 which allowed for VA reports of hospitalization or examination and other medical records which could be regarded as informal claims for increase. Id. Analysis The Veteran contends that he is entitled to an effective date earlier than July 22, 2014 for the grant of service connection for his right lower extremity radiculopathy. Following the Veteran's August 1, 2013 claim for a back disability, the Veteran was diagnosed with left lower extremity radiculopathy during his October 2013 VA examination. The examiner did not find radiculopathy in the Veteran's right lower extremity. The Veteran was granted service connection for right lower extremity radiculopathy effective August 1, 2013. On July 22, 2014, the Veteran submitted an informal claim for an increased rating for his back disability. He was given a VA examination for his back in October 2014. During this examination, the Veteran was diagnosed with both right and left lower extremity radiculopathy. He was granted service connection for his right lower extremity radiculopathy effective the July 22, 2014 date he submitted his informal claim for an increased rating for his back disability. The Board finds that the preponderance of the evidence is against an effective date earlier than July 22, 2014, for the grant of service connection for right lower extremity radiculopathy. The Veteran was not diagnosed with right lower extremity radiculopathy prior to the October 2014 VA examination. Prior examination and treatment records within in the record do not support a diagnosis for right lower extremity radiculopathy prior to October 2014. Therefore, the earliest date available for service connection for right lower extremity radiculopathy would correspond to July 22, 2014; the date the Veteran submitted his informal claim for an increased rating. Assignment of an effective date earlier than July 22, 2104, is not warranted, as this is the date the Veteran first submitted a claim for an increased rating for his back for which he was first subsequently diagnosed with right lower extremity radiculopathy during his October 2014 VA examination. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability is remanded. The Board is unable to make an informed decision on the issue of service connection for a right hip disability because the prior VA examination is inadequate. The December 2017 VA opinion did not address whether the Veteran's right hip disability was aggravated by his service-connected back disability, as he asserted in a March 2018 statement. It also appears that the VA examiner relied on the absence of medical records in opining that the Veteran did not sustain a right hip injury during service. This is despite records documenting that the Veteran suffered back and lower extremity injuries following a two-story fall. Therefore, on remand a new VA medical opinion must be obtained to address direct service connection and aggravation in view of the totality of the record, to include the Veteran's treatment records and lay statements. 2. Entitlement to a rating greater than 10 percent prior to October 28, 2014 for a right knee disability and greater than 30 percent thereafter is remanded. The Board is unable to make an informed decision on the increased rating claim for a right disability because the prior VA examinations are inadequate. The Veteran was provided two VA knee examinations during the appeal period. While both examiners identified that the Veteran experienced addition loss of ROM during flare-ups, ROM findings for the Veteran's right knee during a flare-up of symptoms were not provided; instead, the examiners stated that such would be mere speculation. These statements do not suffice the Court's holding in Sharp v. Shulkin, 29 Vet. App 26, 34 (2017), and thus, the examinations are inadequate for the purpose of readjudicating the Veteran's appealed issue. On remand, the Veteran should be given a new VA examination that addresses additional most motion of the right knee during a flare-up of symptoms contemporaneously and retrospectively. The matters are REMANDED for the following actions: 1. Forward the claims file and copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion addressing the likely etiology of the Veteran's right hip disability. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. After reviewing the claims file, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed right hip was incurred in or is otherwise related to service? The examiner is asked to review and discuss the Veteran's two-story fall during service and whether his right hip condition was incurred in service as a result of his two-story fall. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed right hip is proximately due to (caused by) any of the Veteran's service-connected disabilities to include his service-connected back disability? (c) If (b) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed right hip has been aggravated by any of the Veteran's service-connected disabilities to include his service-connected back disability? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. If the Veteran reports flare-ups, the examiner should ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state why that is and what additional information is needed to provide the opinion. 2. Schedule the Veteran for the appropriate VA examination to assess the severity of his service-connected right knee disorder. Copies of all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed using the appropriate DBQ if available. If the Veteran reports flare-ups, the examiner should ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided. 3. Confirm that the VA medical opinions provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. 4. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.