Citation Nr: 21013245 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-40 636 DATE: March 9, 2021 ORDER An effective date earlier than April 4, 2014, for the grant of a separate 10 percent rating for left lower extremity radiculopathy is denied. An effective date earlier than April 4, 2014, for the grant of an increased rating of 20 percent for a service-connected back disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence does not show that Veteran experienced left lower extremity radiculopathy prior to April 4, 2014. 2. The preponderance of the evidence shows that the Veteran’s back disability was not productive of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or by a combined range of motion of the thoracolumbar spine greater than 120 degrees; or by muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis prior to April 4, 2014. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 4, 2014, for the grant of a separate rating of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 2. The criteria for an effective date earlier than April 4, 2014, for the grant of an increased rating of 20 percent for a service-connected back disability have not been met. 38 U.S.C. §§ 5107(b); 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to June 1977. The Veteran died in November 2017. The RO has found the appellant to be a substitute party. This matter was last before the Board in June 2020, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in an October 2020 supplemental statement of the case. The Board finds that VA has substantially complied with the June 2020 Board remand. Effective Dates Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Left Lower Extremity Radiculopathy The appellant asserts that the Veteran’s left lower extremity radiculopathy should have been granted service connected prior to April 4, 2014. An April 2014 rating decision increased the Veteran’s disability rating for his back disability to 20 percent and granted the Veteran service connection for left lower extremity radiculopathy and assigned a 10 percent disability rating effective April 4, 2014. The rating decision noted the grant of service connection and 10 percent evaluation for the Veteran’s left leg radiculopathy was not specifically claimed by the Veteran. Instead, it was considered within the scope of the Veteran’s claim for an increased rating for his back disability and that on April 4, 2014, it was first documented in the Veteran’s medical records that he had left leg radiculopathy. An earlier August 2012 VA examination of the Veteran’s back found no radicular pain or any other signs or symptoms due to radiculopathy. Likewise, a review of available treatment records does not reveal that the Veteran’s radiculopathy manifested prior to April 4, 2014. The Veteran was afforded a VA examination for his back on April 4, 2014. The examiner indicted that the Veteran had left lower extremity radiculopathy with mild paresthesias and/or dysesthesias. The examiner found involvement of the sciatic nerve and characterized the severity of the radiculopathy as mild. This examination formed the basis for the grant of service connection for left lower extremity radiculopathy and the assigned 10 percent disability rating. As noted above, the Veteran never filed a formal or informal claim for left leg radiculopathy. Therefore, the earliest effective date available is the date entitlement to this disability arose. Accordingly, the criteria for an effective date prior to April 4, 2014, for the grant of a separate 10 percent rating for left lower extremity radiculopathy have not been met, and the appeal is denied. Back Disability An October 2012 rating decision granted the Veteran service connection for a back disability and assigned a 10 percent disability rating effective February 24, 2012, the date of the Veteran’s claim. In October 2012, the Veteran filed an increased rating claim for his back disability. An April 2014 rating decision granted an increase rating of 20 percent effective April 4, 2014, the date the Veteran’s increased rating claim was received by VA. The appellant asserts that the effective date for the 20 percent disability rating should be earlier than April 2014. The Veteran was afforded a VA examination for his back in August 2012. On examination, the examiner found forward flexion to 90 degrees or greater with objective evidence of painful motion at 50 degrees. There were no other range of motion limitation and no other objective evidence of pain. After three repetitive motions, forward flexion was against 90 degrees or better. The Veteran exhibited full strength and there were no muscle spasms or guarding of the thoracolumbar spine. This examination formed the basis for granting service connection and assigning a 10 percent disability rating effective February 24, 2012. The Veteran was afforded another VA examination of his back on April 4, 2014. On examination, the examiner found forward flexion to 50 degrees with evidence of pain at 50 degrees. Left and right lateral rotation was to 15 degrees with objective evidence of pain at 15 degrees. All other range of motion findings were within the normal range. There was no additional loss of range of motion after three repetitions. The examiner found tenderness to palpation of the upper lumbar and lower thoracic regions. Muscle spasms were also noted; however, they did not result in an abnormal gait or abnormal spine contour and no guarding was observed. There was no ankylosis of the spine. Finally, the examiner found IVDS with episodes of bed rest having a total duration of at least six weeks during the prior 12 months. The April 3, 2014 examination was the basis for the increase of the Veteran’s disability evaluation for his service-connected back disability to 20 percent with an effective day on the date of the examination. The Veteran’s treatment records do not contain any indication of a limitation of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees; or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis prior to April 4, 2014. The Board finds that the criteria for the 20 percent disability rating were first shown to be met at the April 2014 VA examination. The Board acknowledges and has considered the statements from the Veteran and the appellant. In fact, it is these statements that provided the basis, in part, for the evaluations, which indicate a serious back condition that clearly caused the Veteran many problems. While the Veteran was competent to report the symptoms of his disabilities, he was not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical condition at any given time, based on the criteria above. See Jandreau , 492 F.3d 1372. As such, the lay assertions made by the Veteran and his family members are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a higher rating pursuant to the applicable criteria. Accordingly, the criteria an effective date prior to April 4, 2014, for the grant of a 20 percent rating for the Veteran’s back disability have not been met, and the appeal is denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.