Citation Nr: A21020600
Decision Date: 12/28/21	Archive Date: 12/28/21

DOCKET NO. 200207-61528
DATE: December 28, 2021

ORDER

Entitlement to a 40 percent disability evaluation for degenerative disc disease (DDD), lumbosacral spine, for the period from September 18, 2018 to October 3, 2019, is granted.

Entitlement to a disability evaluation in excess of 20 percent for DDD, lumbosacral spine, for the periods prior to September 18, 2018 and from October 4, 2019, is denied.

Entitlement to an earlier effective date than September 18, 2018 for service connection for right lower extremity radiculopathy, sciatic nerve, is denied.

REMANDED

Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

FINDINGS OF FACT

1. The evidence is at least in relative equipoise as to whether the Veteran's DDD of the lumbar spine caused limitation of forward flexion of the lumbar spine to 30 degrees or less during the period from September 18, 2018 to October 3, 2019.

2. The preponderance of the evidence weighs against finding that the Veteran's DDD of the lumbar spine caused limitation of forward flexion of the lumbar spine to 30 degrees or less during the period before September 18, 2018 and after October 3, 2019; the preponderance of the evidence also weighs against finding that the Veteran's DDD of the lumbar spine caused ankylosis or periods of incapacitation lasting 4 weeks or more during any 12-month portion of the period on appeal.

3. The Veteran did not have a diagnosis of right lower extremity radiculopathy or neuropathy, nor any symptoms or conditions similar to radiculopathy or neuropathy that caused functional loss and were attributable to the Veteran's service-connected back condition, prior to September 18, 2018.

CONCLUSIONS OF LAW

1. The criteria for a disability rating of 40 percent disabling for DDD of the lumbar spine have been met for the period from September 18, 2018 to October 3, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

2. The criteria for a rating in excess of 20 percent disabling for DDD of the lumbar spine have not been met during the periods prior to September 18, 2018 and from October 4, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

3. The criteria for an effective date prior to September 18, 2018 for the grant of service connection for right lower extremity radiculopathy, sciatic nerve, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1977 to October 1981.

A rating decision was issued under the legacy system in October 2017 and the Veteran submitted a timely notice of disagreement. In December 2019, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). The Veteran opted the claim(s) into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a February 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the December 2019 SOC. Therefore, the December 2019 SOC is the decision on appeal. In the February 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2019 SOC. 38 C.F.R. § 20.301.

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of entitlement to a disability evaluation in excess of 20 percent for DDD of the lumbosacral spine and entitlement to an earlier effective date than September 18, 2018 for service connection for right lower extremity radiculopathy, sciatic nerve, it may not consider this evidence in its adjudication of those issues in this decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, as the Board is remanding the claim of entitlement to TDIU for further development, this additional evidence will be considered by the RO in the adjudication of those claims.

The Veteran has claimed entitlement to TDIU and submitted evidence in support of his claim therefor during the pendency of his appeal for an increased evaluation of his DDD, lumbosacral spine. As such, the Veteran's claim of entitlement to TDIU is part and parcel of the claim for an increased evaluation, and it, too, is now on appeal and discussed herein. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

Increased Rating

1. Entitlement to a disability evaluation in excess of 20 percent for degenerative disc disease (DDD), lumbosacral spine

The Veteran claims entitlement to a disability evaluation in excess of 20 percent for DDD of his lumbar spine. The disability is evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5243 throughout the period on appeal (i.e., since the date of his claim for an increased disability evaluation from which this appeal stems). See VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, received May 31, 2017. 

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

Under the rating criteria, back disabilities are generally rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), but intervertebral disc syndrome (IVDS) is rated under either the General Rating Formula or the Formula for Rating IVDS based on Incapacitating Episodes (IVDS Formula), whichever formula results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for 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 greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1.

Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V.

The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). Unfavorable ankylosis is defined as a condition in which the entire spine is fixed in flexion or extension and results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id.

Recently, the U.S. Court of Appeals for Veterans Claims (Court) held that the requirement of ankylosis in the General Rating Formula for Injuries and Diseases of the Spine can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021).

Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is assigned when IVDS causes 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 is assigned when IVDS causes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).

During the pendency of this appeal, VA promulgated new regulations governing ratings for the musculoskeletal system and muscle disabilities, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33, 422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change.

In pertinent part, 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative arthritis of the spine was revised to apply to degenerative arthritis and degenerative disc disease other than IVDS. In addition, 38 C.F.R. § 4.71a, Diagnostic Code 5243 for IVDS was revised to include an instruction to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 should be assigned for all other disc diagnoses. The actual rating criteria (the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating IVDS Based on Incapacitating Episodes), however, were not changed.

The Board also notes that under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. In the absence of limitation of motion, a 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Both sacroiliac joints, along with the lumbosacral articulation, are considered to be a single group of minor joints. 38 C.F.R. § 4.45(f). Multiple involvement of the lumbar vertebrae is also considered to be a group of minor joints. Id. 

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint.

When evaluating disabilities of the musculoskeletal system, it is also necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability, and consideration must also be given to less movement than normal, more movement than normal, and incoordination. See 38 C.F.R. § 4.45; see also DeLuca, 8 Vet. App. 202; Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). And even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

After review of the evidence of record, the Board finds that the preponderance of the evidence weighs in favor of a rating of 40 percent disabling for the Veteran's DDD of his lumbar spine during the period from September 18, 2018 to October 3, 2019, but against a rating in excess of 20 percent therefor prior to September 18, 2018 and from October 4, 2019.

In September 2018, the Veteran submitted an Independent Medical Evaluation (IME) that was completed by a private physician as evidence in support of his pending claims and dated September 18, 2018. The Veteran claims entitlement to a disability evaluation in excess of 20 percent based on a finding of a limitation of forward flexion to 20 degrees that was noted in that IME. See IME dated September 18, 2018; VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), received February 7, 2020.

The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, stiffness, excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time, etc., however, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's reports of symptoms would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, during the periods prior to September 18, 2018 and from October 4, 2019.

The Veteran was afforded VA back conditions examinations in October 2017, October 2019, and February 2020. The October 2017 VA examiner did not estimate the Veteran's lumbar spine range of motion after repetitive use testing or repeated use over time, but the examination report is still probative as to the range of motion measurements that were provided. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight... if the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains."). None of the reports of those VA examinations indicate that the Veteran's service-connected DDD of the lumbar spine caused ankylosis or a limitation of forward flexion to 30 degrees or less. Rather, with regard to forward flexion, the VA examinations show that at worst, it was limited to 35 degrees during flare ups. See Back Conditions DBQ dated October 4, 2019. The October 2017 VA back conditions examination report indicates that forward flexion was limited to 50 degrees, at worst. The September 2018 IME, however, as briefly discussed above, indicates that the Veteran's forward flexion, as measured with a goniometer, was limited to 20 degrees at the time of the examining physician's examination of the Veteran. There is no other evidence in the claims file of the Veteran's lumbar spine forward flexion being limited to 30 degrees or less.

Considering the foregoing, the Board finds that the evidence of record weighs in favor of finding that the Veteran's DDD of the lumbosacral spine caused limitation of forward flexion of the lumbar spine to 20 degrees on September 18, 2018, but against finding that the Veteran's disability picture related to his service-connected DDD of the lumbar spine more nearly approximated the criteria required for a rating in excess of 20 percent disabling (e.g., forward flexion limited to 30 degrees or less) during the portions of the period on appeal prior to September 18, 2018 and on and after October 4, 2019. The October 2017 VA examination report shows that forward flexion was not limited to 30 degrees or less on October 4, 2017; the September 2018 IME indicates that forward flexion was limited to 20 degrees on September 18, 2018; and the October 2019 VA examination report indicates that on October 4, 2019, the Veteran's lumbar spine forward flexion was not limited to 30 degrees or less initially, upon repetitive use testing, after repetitive use over time, or during flare ups. None of the evidence of record (including but not limited to VA and private treatment records, the IME, and VA examination reports) indicates that the Veteran's service-connected DDD of the lumbar spine caused ankylosis. These VA examination reports and the September 2018 IME are the most probative evidence of record as to the Veteran's lumbar spine range of motion on the aforementioned dates and throughout the period on appeal, generally.

The evidence of record also weighs against finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating under the IVDS Formula. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. None of the evidence of record (including the VA examination reports, September 2018 IME, and VA and private treatment records) indicates that bedrest was prescribed for treatment of the Veteran's service-connected back disability by a physician for a period of 4 weeks or more during any 12-month portion of the period on appeal.

Regarding neurological impairment, the Veteran has already been granted service connection for bilateral lower extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability.

Based on the foregoing, the Board finds that the Veteran is entitled to a 40 percent disability rating for the portion of the period on appeal spanning from September 18, 2018 to October 3, 2019, but that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for all other portions of the period on appeal (i.e., the periods before September 18, 2018 and on and after October 4, 2019). In denying an increased rating for those latter portions of the period on appeal, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Earlier Effective Date

2. Entitlement to an earlier effective date than September 18, 2018 for service connection for right lower extremity radiculopathy, sciatic nerve

The Veteran claims entitlement to an earlier effective date, prior to September 18, 2018, for the grant of service connection for his right lower extremity radiculopathy, sciatic nerve.

Generally, the effective date for an award based on an original claim or a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). If a claim for service connection is received within a year following separation from service, the effective date will be the day following separation; otherwise, the effective date is the date of the claim. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).

Prior to March 24, 2015, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, was 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. 38 C.F.R. § 3.155(a).

A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1 (p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). While the VA should broadly interpret submissions from a Veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

Here, the Veteran did not file a claim, formal or informal, for entitlement to service connection for right lower extremity radiculopathy or neuropathy until May 31, 2017, the date on which VA received the first such claim from the Veteran. See VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, received May 31, 2017. This claim was not received within a year following the Veteran's separation from service.

The Veteran's representative claims that "[t]he [V]eteran's difficulties with his right lower extremity are documented as far back 12/21/2009 [sic] VA Primary Care Note at which time the [V]eteran complained of right foot numbness recently with the flare up of the LBP." See VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), received February 7, 2020. However, after review of the evidence of record, including but not limited to the Veteran's private and VA treatment records and reports of VA examinations performed prior to May 31, 2017, the Board finds that the Veteran was not diagnosed with right lower extremity radiculopathy or neuropathy prior to May 31, 2017, and also that there is no indication of any radiculopathy or neuropathy-like symptoms that caused functional loss and were determined to be caused by the Veteran's service-connected back condition. The Veteran's VA treatment records do indeed indicate that he complained of numbness in his right foot in November 2008, but the records also show that an electromyography (EMG) study was performed at that time and the results were normal. See VA treatment records received October 5, 2017. An August 2011 note in the Veteran's VA treatment records indicates that he reported numbness, weakness, and general symptoms similar to his past cervical radiculopathy and sciatica at that time. An August 2012 note contains the following language: "denies headaches, burning or tingling in extremities. + neuropathy R foot." However, none of the VA treatment records dated prior to May 31, 2017 indicate that the Veteran was actually diagnosed with right lower extremity radiculopathy or neuropathy or had similar symptoms that both caused functional loss and were caused or aggravated by the Veteran's service-connected back condition prior to that date.

The Veteran was afforded a VA back conditions examination in October 2017, and the examiner that performed the examination reviewed the Veteran's claims file and conducted an in-person examination of the Veteran before opining that the Veteran had radicular pain and other signs and/or symptoms due to radiculopathy affecting his left lower extremity but not his right lower extremity. See Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) dated in October 2017. In the September 2018 private IME that the Veteran submitted in support of his claims, the private physician assessed the Veteran as having bilateral lower extremity radiculopathy that is at least as likely as not caused by the Veteran's service-connected lumbar spine condition. See IME dated September 18, 2018. A subsequent, October 2019 VA examination report confirmed the diagnosis of right lower extremity radiculopathy. See Peripheral Nerves Conditions DBQ received October 4, 2019. This private IME is the first indication in the record that the Veteran had right lower extremity radiculopathy or similar symptoms causing functional impairment that are attributable to the Veteran's service-connected back condition. In the December 2019 decision on appeal, the RO granted service connection for right lower extremity radiculopathy and assigned an effective date of September 18, 2018, which corresponds with the date of the private IME.

As the evidence does not show a diagnosis of right lower extremity radiculopathy or neuropathy or any other symptoms or conditions that caused functional loss and were attributable to the Veteran's service-connected back condition prior to September 18, 2018, the Board finds that the Veteran's entitlement to service connection for right lower extremity radiculopathy did not arise prior to that date, and that the current effective date accords with the facts found; therefore, the Veteran is not entitled to an earlier effective date, prior to September 18, 2018, for the grant of service connection for his right lower extremity radiculopathy, sciatic nerve. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).

REASONS FOR REMAND

1. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

VA examination reports, the Veteran's records from the Social Security Administration (SSA), and other evidence in his claims file indicate that the Veteran is, or at least may be, unemployable due in whole or in part to his service-connected disabilities. His service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a). Considering the above, the Board finds that this appeal warrants referral for extraschedular TDIU consideration to the Director, Compensation Service. The Veteran's claim for TDIU is therefore being remanded for referral to the VA's Director of Compensation Service for extraschedular consideration basis under 38 C.F.R. § 4.16(b).

The matters are REMANDED for the following action:

Refer the case to the Director, Compensation Service, for consideration of a TDIU on an extraschedular basis.

 

 

JOHN G. SETTER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Banks, 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.