Citation Nr: 21010541 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 10-27 917 DATE: February 25, 2021 ORDER Entitlement to a disability rating of 40 percent (increased from 20 percent), but no higher, for degenerative disc disease of the thoracolumbar spine, for the period from February 25, 2009, to April 10, 2017, is granted. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the thoracolumbar spine, for the period from April 10, 2017, onward, is denied. Entitlement to service connection for radiculopathy of the right lower extremity is granted. Entitlement to an effective date prior to November 5, 2009, for the grant of service connection for degenerative disc disease and degenerative joint disease of the cervical spine is denied. FINDINGS OF FACT 1. For the period from February 25, 2009, to April 10, 2017, the Veteran’s degenerative disc disease of the thoracolumbar spine was manifested by functional impairment approximating limitation of forward flexion to 30 degrees; it was not manifested by unfavorable ankylosis of the entire thoracolumbar spine nor incapacitating intervertebral disc syndrome (IVDS) episodes having a total duration of at least 6 weeks during a 12 month period. 2. For the period from April 10, 2017, onward, the Veteran’s degenerative disc disease of the thoracolumbar spine has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine nor incapacitating IVDS episodes having a total duration of at least 6 weeks during a 12 month period. 3. The Veteran has had radiculopathy of the right lower extremity during the pendency of the claim for service connection, and this disability is etiologically linked to his service-connected thoracolumbar spine disability. 4. The earliest claim seeking to establish entitlement to service connection for degenerative disc disease and degenerative joint disease of the cervical spine was received by VA no earlier than November 5, 2009. CONCLUSIONS OF LAW 1. Throughout the period from February 25, 2009, to April 10, 2017, the criteria for a 40 percent rating, but no higher, for degenerative disc disease of the thoracolumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. Throughout the period from April 10, 2017, onward, the criteria for a rating in excess of 40 percent for degenerative disc disease of the thoracolumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria for service connection for radiculopathy of the right lower extremity, as secondary to service-connected thoracolumbar spine disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for an effective date prior to November 5, 2009, for the award of service connection for degenerative disc disease and degenerative joint disease of the cervical spine have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from October 1982 to September 2003. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This case was previously before the Board in May 2017, when the Board remanded the issues for procedural reasons / readjudication by the Agency of Original Jurisdiction (AOJ). The Board notes that the May 2017 Board remand included a directive that the AOJ must issue a statement of the case (SOC) on the effective date issue listed above; the needed SOC was issued in June 2020, and the Veteran perfected that issue for appeal to the Board with a June 2020 VA Form 9. All of the issues addressed by the Board’s May 2017 remand have now returned to the Board for final appellate review, except that the issue of entitlement to service connection for “bilateral lower extremity lumbar spine radiculopathy” was partially granted by the AOJ’s December 2019 rating decision that granted service connection for radiculopathy of the left lower extremity. The grant resolved that portion of the issue on appeal. The remainder of the radiculopathy service connection claim, concerning right lower extremity radiculopathy, remains in appellate status and is addressed by the Board in this decision. Increased Ratings Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. An exception to this rule applies when the rating criteria are successive. In such a case, all the requirements of the lower levels must be met before a higher level is awarded, and 38 C.F.R. §§ 4.7 and 4.21 do not apply. Johnson v. Wilkie, 30 Vet. App. 245 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. With a claim for an increased initial rating, separate staged ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lay evidence may be competent to address any matter not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence pertinent to the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all contents of the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran’s disabilities prior to the rating period on appeal to see if the history supports a higher rating during the rating period on appeal. Additional references to the Veteran’s service-connected disabilities are presented in evidence of record beyond that discussed below, including in VA medical reports associated with the Veteran’s treatment. The additional evidence of record does not present findings that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. As discussed in more detail below, rating determinations in this case involve recently revised regulations. As an initial matter, the Board notes that the Veteran has not been notified as to all of the changed regulations, and the Agency of Original Jurisdiction (AOJ) has not adjudicated the Veteran’s claims under all applicable versions of the regulations. However, to the extent of matters resolved with final determinations in this Board decision, the changes to regulations merely represent either (a) no substantive changes that impact the Veteran’s ratings, or (b) changes to rating provisions with no applicability to the particular types of disabilities the Veteran’s case presents in this appeal. The Board does not find that the Veteran is prejudiced by the Board proceeding with a decision regarding these matters. Special Considerations for Musculoskeletal Disability Ratings Generally, in evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The United States Court of Appeals for Veterans Claims (Court) has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 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, 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. Pain may be taken into consideration when rating functional loss. However, pain on motion is not, itself, functional loss, but may result in functional loss only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination[, or] endurance.” 38 C.F.R. § 4.40. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40). 38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court addressed the adequacy of medical opinions that decline to present clear estimations by citing that such estimations would be mere speculation. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of Veterans. VA examiners have a duty to elicit information from the Veteran when attempting to describe functional loss associated with pain during unobserved exacerbations. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation (whether based on lack of expertise, insufficient information, or unprocured testing) of the individual examiner. 1. Entitlement to a disability rating of 40 percent (increased from 20 percent), but no higher, for degenerative disc disease of the thoracolumbar spine, for the period from February 25, 2009, to April 10, 2017, is granted. 2. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the thoracolumbar spine, for the period from April 10, 2017, onward, is denied. The Veteran contends that he is entitled to a higher rating for his service-connected degenerative disc disease of the thoracolumbar spine. He contends that the severity of the disability is greater than the assigned ratings reflect. The beginning of the rating period for consideration in this case is defined by the date of receipt of the Veteran’s claim giving rise to this appeal: February 25, 2009. During the pendency of the instant appeal, VA promulgated new regulations governing ratings for 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. The provisions pertinent to the Board’s decision in this case are not substantially changed by the new regulations effective February 7, 2021. The Veteran’s degenerative disc disease of the thoracolumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. 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. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis 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 dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain 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. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 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.”). 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. 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. First, the Board finds that this case presents an evidentiary record supporting, with resolution of reasonable doubt in the Veteran’s favor, a grant of an increased 40 percent rating for the thoracolumbar spine disability for the period prior to April 10, 2017. A 40 percent rating is warranted for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less. A July 2011 VA examination report shows that the Veteran’s thoracolumbar spine forward flexion was clinically measured as limited to 35 degrees; taken at face value, this fails to meet the criteria for a 40 percent rating. However, the Board notes that the same report documents the Veteran’s report that he “does have flareups … caused by any activities such as going to the mall and walking too far. [He] cannot even get through grocery shopping.” The report describes: “During a flareup, the Veteran participates in no activity. The flareup lasts 2 to 3 days, and he has flareups 2 to 3 times per month, and he states that is if he is not doing anything to cause more flareups such as prolonged walking.” The Board finds that it is reasonably clear that the July 2011 VA examination was not performed during a flare-up, and the 35 degrees of forward flexion measured during the July 2011 VA examination’s clinical inspection did not reflect the extent of the Veteran’s impairment experienced during a flare-up. The Board’s rating analysis must attempt to ascertain the degree of the Veteran’s functional impairment during a flare-up, but the July 2011 VA examination report does not contain a clear measurement or estimate with information addressing whether the Veteran’s significant flare-ups (significant in both degree of impairment and duration in time) resulted in impairment meeting the criteria for a 40 percent rating around that time. This is inadequacy in the information presented in the July 2011 VA examination report leads the Board to seek other indicators with regard to understanding the degree of impairment associated with the Veteran’s flare-ups. The Board notes that a later April 2017 VA examination report shows clinical observation of forward flexion limited to 10 degrees, and this measurement was not during a flare-up. A later December 2019 VA examination report shows that a VA examiner considered the Veteran’s description of impairment during flare-ups and estimated that the degree of impairment could be expressed as a limitation of forward flexion to an estimated 30 degrees. A later October 2020 VA examination report shows that the Veteran’s forward flexion was clinically observed to be limited to 30 degrees. Furthermore, the VA examiner stated that “the examination is medically consistent with the Veteran’s statement describing functional loss with repetitive use over time,” and that “pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time.” The October 2020 VA examiner provided an expert estimate that the Veteran’s accepted description of functional impairment following repeated use over time indicated forward flexion was limited to “0 to 20 degrees,” and this was due to pain, fatigue, weakness, and lack of endurance. Although a significant period of time elapsed between (a) the July 2011 VA examination report with the inadequate information regarding functional impairment, and (b) the later VA examination reports that provide additional information, the Board finds that the Veteran’s description of impairment from “flare-ups … caused by any activities” in July 2011 appears to be largely consistent with his description of impairment following “repeated use over time” in October 2020. The Board notes that (1) the Veteran’s clinically observed limitation of forward flexion in July 2011 was to 35 degrees, which itself nearly approached the degree of limitation that would satisfy the criteria for a 40 percent rating; (2) the Veteran’s description of functional impairment during unobserved exacerbations in July 2011 credibly described significant additional impairment beyond what was observed / measured at the time of the examination, (3) the October 2020 VA examiner determined that a substantially similar account of such functional impairment was “medically consistent” with the objective clinical findings, and (4) the Veteran’s April 2017, December 2019, and October 2020 VA examination reports show that the limitation of the Veteran’s forward flexion varied significantly depending upon the moment of observation. The Board will attempt to make reasonable inferences from available evidence to determine the degree of functional impairment caused by the thoracolumbar spine disability, with attention to the fact that the impairment was not fully adequately depicted by the July 2011 VA examination report. In light of the above, the Board finds that it is reasonable to conclude, resolving doubt in the Veteran’s favor, that the thoracolumbar spine disability limited forward flexion to 30 degrees during the exacerbations he reported to the July 2011 VA examiner. Accordingly, the Board finds that the criteria for a 40 percent rating were met at that time. The Board finds no persuasive indication of record that this degree of impairment was new or had onset at any time following the February 2009 claim. The Board does acknowledge that a September 2009 VA examination report shows “100” degrees of thoracolumbar spine forward flexion, while a “normal” range of forward flexion was considered to be 90 degrees. Every other range of motion for the thoracolumbar spine was measured to be abnormal / diminished at that time, the measurement of 100 degrees of forward flexion appears to be inconsistent with the Veteran’s credible descriptions of impairment and other clinical measurements of record, and the Board wonders whether the forward flexion report of “100” degrees may be a typographical error. Significantly, the Board notes that an earlier VA examination report dated in June 2003 shows forward flexion clinically measured as a limited 40 degrees, and a later July 2011 VA examination report shows forward flexion clinically measured as a limited 35 degrees. In any event, the February 2009 VA examination report also documents the Veteran’s description of functional impairment during exacerbations of the back disability beyond the extent observable by the VA examiner in February 2009. The February 2009 VA examiner did not provide any estimations or findings otherwise adequately informing a determination of the degree of impairment during the unobserved exacerbations. The Board finds that the Veteran’s February 2009 description of functional impairment during exacerbations is reasonably consistent with his later descriptions, discussed above, that the Board has found adequate to support an award of a 40 percent rating when resolving reasonable doubt in the Veteran’s favor. For the above reasons, the Board finds that a 40 percent rating is warranted from the date of the Veteran’s February 2009 claim even with consideration of the February 2009 VA examination report. The Board concludes that an increased 40 percent rating is warranted for the period from February 25, 2009, to April 10, 2017; to this extent, the appeal is granted. This results in the Veteran now having established entitlement to a 40 percent rating for the thoracolumbar spine disability throughout the rating period on appeal. The Board now turns to the question of whether any further increased rating in excess of 40 percent is warranted for any period in this case. The Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 40 percent for the Veteran’s thoracolumbar spine disability. The Board acknowledges the Veteran’s lay reports of symptoms and that there has been functional loss due to pain (including during flare-ups and repetitive use over time), fatigability, weakness, and lack of endurance. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements (that during exacerbations of symptoms he must essentially discontinue all activities, including prolonged walking, for up to 3 days on up to 3 occasions per month, including as discussed in the July 2011 VA examination report) would not result in impairment more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. All of the range of motion measurements and estimates of record show that the Veteran’s thoracolumbar spine is not ankylosed, including the October 2020 VA examiner’s detailed estimations of the functionally limited ranges of motion during exacerbations following repeated use over time. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. The rating criteria provide that a 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during a 12 month period. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings 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. Id. at Note 1. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The October 2020 VA examination report shows that the Veteran has no “signs and symptoms due to nerve root irritation” representing IVDS, and thus no associated incapacitating episodes. The December 2019 VA examination report presents a similar finding. The April 2017 VA examination report shows “No,” it was -not- the case that the Veteran had “any episode of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician,” in the preceding year. The September 2009 VA examination report presents a similar finding. There is otherwise no evidence of record indicating that the Veteran has experienced qualifying incapacitating IVDS episodes, with bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 6 weeks during a 12 month period. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for the thoracolumbar spine disability. In denying such a rating, 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. The Court and VA’s General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as providing that, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was factually ascertainable. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). In this case, the Board has awarded an increased 40 percent rating for the Veteran’s back disability effective from the February 25, 2009, date of the claim on appeal. The Board has now considered whether any worsening of the disorder within one year prior to the claim warranted an increased rating. However, the Board finds no evidence making it factually ascertainable that the Veteran’s back disability underwent an increase in severity to meet the criteria for an increased rating on any identifiable date within a year prior to the February 25, 2009, date of claim. None of the evidence of record shows a factually ascertainable increase in the Veteran’s back disability impairments causing the criteria for a 40 percent rating to have been met on a factually ascertainable date within the year prior to February 25, 2009. Accordingly, the Board finds no factually ascertainable date of increase in the severity of back disability impairment during the one year period prior to the claim dated February 25, 2009, to serve as a basis for awarding an increased rating effective from prior to that date of the claim. The Board observes that the Veteran has already been granted service connection for radiculopathy of the left lower extremity, and the Veteran’s claim of entitlement to service connection for radiculopathy of the right lower extremity is before the Board on appeal and addressed in a separate section of this decision. The Veteran and his representative have not raised any other issues in connection with the issues on appeal, nor have any other issues been reasonably raised by the record in connection with these matters. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. Entitlement to service connection for radiculopathy of the right lower extremity is granted. The Veteran has contended that he suffers from lumbar spine radiculopathy of the right lower extremity due to his service-connected back / thoracolumbar spine disability. This issue was originally part of the Veteran’s claim of entitlement to service connection for radiculopathy of the bilateral lower extremities, but a December 2019 RO rating decision granted service connection for radiculopathy of the left lower extremity, leaving a remaining issue of entitlement to service connection for radiculopathy of the right lower extremity for appellate review at this time. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.310, service connection also may be granted, on a secondary basis, for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability, by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Because the Veteran has not raised, and the record does not otherwise reasonably raise, a question of entitlement to service connection for radiculopathy on a direct basis, the Board’s adjudication will consider only the raised issue of entitlement to secondary service connection for radiculopathy of the right lower extremity due to service-connected thoracolumbar spine disability. A threshold determination for the Board to make in this case is whether the Veteran has a current right lower extremity radiculopathy disability. The Board concludes that, despite recent evidence showing no signs of radiculopathy of the right lower extremity, there is sufficient evidence that the Veteran had a diagnosis of radiculopathy of the right lower extremity in the early portion of the pendency of this claim. The Board concludes that the Veteran does have a current diagnosis or disability associated with right lower extremity radiculopathy. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The October 2020 VA examination report specifically indicates that “No,” the Veteran does -not- “have radicular pain or any other signs or symptoms due to radiculopathy.” The December 2019 VA examination report indicates “The right lower extremity has a peripheral neuropathy due to surgery on the Achilles tendon. This [is] independent of the back conditions. No radiculopathy found on the right.” The April 2017 VA examination report documents that the Veteran had radiculopathy of the -left- lower extremity (now separately service-connected), but “None” for the right lower extremity; the right lower extremity was “Not affected.” However, a March 2010 private medical report shows a medical impression of “Chronic lumbar radiculopathy,” and this was based upon “mild foot drop on the left” and “reduced ankle jerks.” This appears to suggest that the Veteran’s thoracolumbar radiculopathy was manifested by at least some impairment of the right lower extremity (reduced reflex function in the right ankle). Private medical reports from July 2010 and November 2010 reasonably support this indication by showing reduced knee and ankle reflexes bilaterally (“Reflexes: … 1+ at the knees and trace at the ankles”). The July 2011 VA examination report indicates that the examiner was “unable to elicit deep tendon reflexes bilaterally.” The Veteran is not required to show the presence of right lower extremity radiculopathy throughout all of the pendency of the claim to establish entitlement to service connection for a disability that is reasonably medically established during some portion of the pendency of the claim. The evidence is not unequivocally clear on this point, but the Board finds that the evidence reasonably indicates that the Veteran was medically assessed with right lower extremity radiculopathy in the early part of the pendency of this claim for service connection. Additionally, the Board finds the medical evidence presents the right lower extremity radiculopathy as an impairment resulting from the Veteran’s service-connected thoracolumbar spine disability, as the assessments of the radiculopathy occurred in the context of accounting for signs and symptoms of the service-connected back disability. Although there is an additional indication of an unrelated neurological impairment of the right lower extremity, the Board finds no significant suggestion of record indicating that the previously assessed right lower extremity radiculopathy was not etiologically linked to the service-connected back disability, and the Board notes that the Veteran has already established that his service-connected back disability has caused radiculopathy in his left lower extremity. Upon review of the record, the Board finds the evidence to be at least in equipoise as to whether the Veteran has a qualifying current disability of right lower extremity radiculopathy proximately due to his service-connected thoracolumbar spine disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for right lower extremity radiculopathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to an effective date prior to November 5, 2009, for the grant of service connection for degenerative disc disease and degenerative joint disease of the cervical spine is denied. An August 2010 RO rating decision, adjudicating a claim filed on November 5, 2009, granted service connection for degenerative disc disease and degenerative joint disease of the cervical spine, effective from the November 5, 2009, date of claim. The Veteran has appealed the effective date assignment for this award, seeking an earlier effective date. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). However, if a claim is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to a Veteran shall be the day following the date of discharge or release. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2); see also Wright v. Gober, 10 Vet. App. 343, 346-48 (1997). The RO has determined that the Veteran initiated a claim of entitlement to service connection for degenerative disc disease and degenerative joint disease of the cervical spine on November 5, 2009. When the RO granted service connection for this disability, it determined that the pertinent impairment was shown to have been present since at least as early as the November 5, 2009, date of the claim. On this basis, the RO assigned an effective date of November 5, 2009, for the pertinent award. To resolve the effective date issue regarding the award of service connection for this disability, the Board must determine the earliest date upon which the Veteran filed a claim raising the issue of entitlement to service connection for the disability. The Board finds no such claim was filed prior to November 5, 2009. The Board finds no basis for assignment of any effective date earlier than November 5, 2009, for the grant of service connection at issue. The Veteran has not identified any pertinent earlier claim, nor has he otherwise identified any provision or authority that would enable to Board to assign an effective date prior to the date of the service connection claim for the disability at issue. Nor does the claims-file document any suggestion that the grant of service connection at issue here arose from any earlier claim. The claim filed on November 5, 2009, was clearly not filed within a year of the Veteran’s discharge from service, nor does the Veteran contend otherwise. The Veteran’s October 2010 notice of disagreement on this issue explains his contention: My medical records show that I started complaining of upper back pain in 1999, 2000, & 2001…. It has since been determined that the pain in my upper back is directly related to the degenerative disc disease in my cervical spine. This proves the condition existed at the time of retirement from service. So I feel this should be the date of award. In a December 2010 statement, the Veteran asserted: “There is evidence in my military records showing that this condition arose[] in 1999 while I was on active duty.” If the Veteran’s contention can be liberally interpreted to suggest that past medical records constituted a claim of entitlement to service connection for the cervical spine disability, such an argument is invalid and fails to establish a date of claim prior to November 5, 2009. The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006), citing Brannon v. West, 12 Vet. App. 32, at 35 (1998). Furthermore, the Court has held that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefit. Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007). In addition, the Court has also stated that a Veteran’s attempt to obtain treatment does not comprise a claim. Dunson v. Brown, 4 Vet. App. 327, 330 (1993). “VA must have some means of distinguishing between legitimate claims and ordinary medical paperwork. The basic procedural requirements imposed by § 3.155 serve this purpose,” and indeed, if a medical record were interpreted as an informal claim, this “would eviscerate the intent requirement [of § 3.155].” See Ellington, 22 Vet. App. at 146. The Court recognized two exceptions to this general rule: (1) When an underlying claim has been awarded and the medical records demonstrate that the Veteran’s disability has increased (38 C.F.R. § 3.157), or (2) when an underlying claim has been denied and the medical records evidence new and material evidence to reopen the claim. Criswell, 20 Vet. App at 504. However, neither exception applies in this case. Accordingly, the Board finds no basis for finding any date of claim for entitlement to service connection for the cervical spine disability prior to November 5, 2009. The Veteran’s contentions otherwise may be reasonably understood to argue that the medical evidence shows that his entitlement to service connection for the cervical spine disability arose prior to the filing of the claim on November 5, 2009. However, although the Board understands the Veteran’s suggestion that the presence of the disability prior to the date of claim should be a sufficient basis for an earlier award of benefits, this argument cannot succeed in establishing entitlement to an earlier effective date for the award of service connection. The Board generally cannot assign an effective date for this award earlier than the date of the Veteran’s claim under the pertinent laws and regulations. As explained above, the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later. The facts in this case provide that the later of those two dates is the date of the claim, which is November 5, 2009; there is no indication of any claim for the pertinent benefit filed prior to November 5, 2009. The Veteran has not otherwise identified any alternative applicable facts, laws, regulations, or other manner of theory that may authorize any effective date earlier than November 5, 2009, for the award in this case. Accordingly, the appeal for an effective date prior to November 5, 2009, for the grant of service connection for degenerative disc disease and degenerative joint   disease of the cervical spine must be denied as a matter of law. The law is dispositive in this matter. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, 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.