Citation Nr: 21015377 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-13 941 DATE: March 17, 2021 ORDER Entitlement to an earlier effective date of October 31, 2003, for the award of a 20 percent rating for the service-connected degenerative disc disease with degenerative joint disease, stenosis, and intervertebral disc syndrome of the lumbar spine is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an earlier effective date of October 31, 2003, for the award of a 20 percent rating for the service-connected sciatic neuropathy of the right lower extremity is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, it is not factually ascertainable that an increase in the severity of his service-connected lumbar spine disability occurred during the appeal period; rather, the weight of the evidence shows that the higher assigned 20 percent rating for the disability has been warranted from the date of the October 31, 2003, claim. 2. Affording the Veteran the benefit of the doubt, it is not factually ascertainable that an increase in the severity of his service-connected RLE sciatic neuropathy occurred during the appeal period; rather, the weight of the evidence shows that the higher assigned 20 percent rating for the disability has been warranted from the date of the October 31, 2003, claim. CONCLUSIONS OF LAW 1. The criteria for an effective date of October 31, 2003, but no earlier, for the award of a 20 percent rating for the service-connected degenerative disc disease with degenerative joint disease, stenosis, and intervertebral disc syndrome of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 4.3, 4.7. 2. The criteria for an effective date of October 31, 2003, but no earlier, for the award of a 20 percent rating for the service-connected RLE sciatic neuropathy has been met. 38 U.S.C. §§ 1155, 5110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1968 to June 1972. In January 2021, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). Although the Veteran had also perfected appeals on the issues of entitlement to increased ratings for his lumbar spine disability and both his right and left leg sciatic neuropathies, prior to the appeals being certified to the Board of Veterans’ Appeals (Board), in August 2014, he submitted a written withdrawal of the increased rating appeals. Accordingly, as discussed at the January 2021 Board hearing, the issues remaining on appeal are limited to the effective date for the assignment of 20 percent ratings for his service-connected lumbar spine disability and his service-connected right leg sciatic neuropathy disability. Effective Dates The effective date of an award based on a claim for increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application.” 38 U.S.C. § 5110(a). The effective date for an increased rating shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date for the increase is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The record shows that the Veteran filed an initial claim for service connection for his lumbar spine disability on October 31, 2003. The Regional Office (RO) granted service connection for the Veteran’s lumbar spine disability and his RLE neuropathy in May 2013 and assigned both disabilities initial ratings of 10 percent, effective the date of the October 31, 2003, claim. The Veteran submitted a written statement disagreeing with the initial ratings assigned in July 2013. A December 2013 Board remand determined that the July 2013 submission was a notice of disagreement with the May 2013 decision’s assignment of initial ratings. The Board remanded the initial increased rating claims for a statement of the case (SOC) to be issued. After the Veteran underwent a January 2014 VA examination for the severity of his back and sciatica, an April 2019 SOC denied ratings in excess of 10 percent for these disabilities. The Veteran then submitted a back conditions disability benefits questionnaire (DBQ) completed by a private family medicine doctor, Dr. M.F., MD, in July 2014. In July 2014, the RO awarded increased, staged 20 percent ratings for the Veteran’s lumbar spine and right leg sciatica, effective July 8, 2014, the date of the DBQ the Veteran submitted. The Veteran has appealed the effective date of the assignment of the 20 percent ratings. The Board finds that the Veteran had continuously pursued his claims for increased ratings for his lumbar spine disability and right leg sciatica since the July 2013 submission of a notice of disagreement. Thus, the effective date of the October 31, 2003, date of claim has been preserved, and is the earliest possible effective date for the assignment of the 20 percent ratings. Therefore, an effective date of October 31, 2003, for the assignment of higher initial 20 percent ratings for the service-connected lumbar spine and RLE sciatica disabilities is warranted unless the evidence shows that an actual change in the severity of the disabilities had occurred over the course of the appeal period. The Board notes that there were no documents of record related to these claims or disabilities submitted prior to October 31, 2003. In considering the severity of the disabilities over the period on appeal, the Board notes that disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Based on the evidence of record, the Board finds that staged ratings are not warranted for the Veteran’s lumbar spine and RLE sciatica disabilities. As such, an effective date of October 31, 2003, is proper for the assignment of the 20 percent ratings. While the RO assigned an initial staged rating for service-connected lumbar spine and right leg sciatica disabilities, the Board finds that, in affording the Veteran the benefit of the doubt, it is not factually ascertainable that an increase in the disability had occurred, and, instead, the evidence is at least in equipoise that the higher assigned 20 percent ratings are warranted for the entire appeal period. In addition to the July 2014 DBQ submitted by the Veteran, there are four VA examinations of record which contain the information needed to apply the disability rating criteria to the Veteran’s disabilities. Two of these examinations were determined to be inadequate by the United States Court of Appeals for Veterans Claims (Court) in an April 2012 decision. Those were the April 2005 and September 2009 VA examinations, which were both performed by the same provider, Dr. K.T. Of note, the February 2013 Board remand immediately following the Court’s decision directed the Veteran to be examined by a provider other than Dr. K.T., given the inadequacies found in his prior examinations of the Veteran. Accordingly, in April 2013, the Veteran underwent a VA back conditions examination with Dr. K.S., a different provider than the one who had previously examined him. However, following the December 2013 Board remand for issuance of an SOC, VA scheduled the Veteran for another VA back conditions examination. In January 2014, he underwent another VA examination, but it was again with Dr. K.T., the same provider who had examined him in April 2005 and September 2009. The Veteran has objected to the adequacy of the January 2014 VA examination as it was performed by Dr. K.T. Given the history in this case with VA examinations performed by Dr. K.T., including the Court’s findings and the Board’s specific request that the Veteran be examined by a different provider after his earlier examinations were found inadequate, the Board affords little, if any, probative weight to the January 2014 VA examination. As such, the April 2005, September 2009, and January 2014 VA examinations hold negligible value as to the severity of the Veteran’s lumbar spine and RLE sciatica disabilities. That leaves the April 2013 VA examination and the July 2014 DBQ as the remaining probative evidence of the severity of the Veteran’s disabilities. The April 2013 VA examination supports the rating criteria for 10 percent ratings for the Veteran’s lumbar spine disability and RLE sciatica. The July 2014 DBQ supports the rating criteria for 20 percent for these disabilities. The Veteran has consistently maintained his position that his conditions had not worsened during the appeal period. Rather, he has asserted that, given his medical expertise as a practicing chiropractor, his symptoms have always necessitated the higher 20 percent evaluations. In light of the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s lumbar spine and right leg sciatica conditions increased during the appeal period or were always as severe as the July 2014 DBQ reflects. As such, the benefit of the doubt should be afforded to the Veteran, in accordance with 38 C.F.R. § 4.3. Thus, the Board finds that, for the entire appeal period, the Veteran’s lumbar spine and right leg sciatica symptoms and the severity of these disabilities more nearly approximated the criteria for 20 percent ratings. The earlier effective date of October 31, 2003, the date of receipt of the Veteran’s claim, is warranted for both of the awards of 20 percent ratings for the service-connected lumbar spine disability and RLE sciatic neuropathy. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Davidoski, Associate 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.