Citation Nr: 21021600 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-46 049 DATE: April 13, 2021 ORDER Entitlement to a disability rating of 20 percent, but no higher, for lumbar degenerative disc disease with thoracic degenerative disc disease for the period from August 10, 2016 to August 7, 2017 is granted. Entitlement to a disability rating in excess of 20 percent for lumbar degenerative disc disease with thoracic degenerative disc disease for the period from August 8, 2017 to January 2, 2020, and from March 1, 2020 onward is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy for the period from August 8, 2016 to November 30, 2019, and in excess of 20 percent from December 1, 2019 onward is remanded. Entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy for the period from August 8, 2016 to November 30, and in excess of 20 percent from December 1, 2019 onward is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s lumbar degenerative disc disease with thoracic degenerative disc disease manifested as forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or as a combined range of motion of the thoracolumbar spine not greater than 120 degrees for the period from to August 10, 2016 to August 7, 2017. 2. The Veteran’s lumbar degenerative disc disease with thoracic degenerative disc disease has not manifested as forward flexion of the thoracolumbar spine 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; unfavorable ankylosis of the entire thoracolumbar spine; or unfavorable ankylosis of the entire spine at any point during the periods from August 8, 2016 to January 2, 2020; and from March 1, 2020 onward. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 20 percent, but no higher, for lumbar degenerative disc disease with thoracic degenerative disc disease for the period from August 10, 2016 to August 7, 2017 have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. 2. The criteria for entitlement to a disability rating of 20 percent, but no higher, for lumbar degenerative disc disease with thoracic degenerative disc disease for the period from August 8, 2016 to January 2, 2020, and from March 1, 2020 onward have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Army from November 2002 to October 2003; from May 2005 to November 2005; from November 2006 to April 2008; and February 2012 to February 2013.The Veteran had service in Iraq and Afghanistan and is a recipient of the Army Commendation Medal, among other awards and decorations. He also had additional service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals on appeal of an October 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). As discussed further below, the Veteran contends that he is entitled to both higher ratings than those currently in effect for his thoracolumbar spine disability and bilateral lower extremity radiculopathy, and to earlier effective dates than those already assigned for said ratings. A review of the procedural history is necessary to clarify the scope of the claims currently on appeal before the Board. The Veteran was granted service connection for a thoracolumbar spine disability in April 2014, then characterized as lumbar strain with mild degenerative disc disease (lumbar strain). In June 2016 the Veteran filed a joint VA/Department of Defense Disability Evaluation Board claim; this claim referenced both a low back disability and radiculopathy associated with the low back disability. In September 2016 the RO granted the Veteran service connection for lumbar degenerative disc disease with thoracic degenerative disc disease (hereinafter thoracolumbar DDD) and merged the Veteran’s prior rating for lumbar strain with his new rating for thoracolumbar DDD. The September 2016 rating decision also granted service connection for right and left lower extremity radiculopathy associated with the thoracolumbar DDD, effective June 20, 2016. In August 2017 the Veteran filed a claim on VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) stating only that he was seeking “sleep apnea” and “increase in back condition” Generally, VA is required to construe Veterans’ filings liberally. See e.g. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (U.S. 2009). However, the Board finds that the August 2017 filing by the Veteran cannot be construed as a Notice of Disagreement effective to initiate an appeal of any element of the September 2016 rating decision. Under regulations in effect at the time of the August 2017 filing, an appeal could be initiated by filing a Notice of Disagreement (NOD). 38 U.S.C. § 7105 (2017); 38 C.F.R. § 19.26 (2017). An NOD must have been properly completed on a form prescribed by the Secretary. 38 C.F.R. § 20.202. Thus, the only remaining available interpretation of the August 2017 filing with respect to the Veteran’s thoracolumbar spine disability and associated lower extremity radiculopathy is as a claim for an increased rating based on worsening of the severity of the Veteran’s disabilities. In October 2017, the RO issued a rating decision that denied service connection for sleep apnea, granted an increased rating of 20 percent for the Veteran’s thoracolumbar DDD effective the date of his August 2017 filing, and granted entitlement to new, separate ratings for left and right “sciatic radiculopathy.” In August 2018 the Veteran filed an NOD referencing the October 2017 decision, stating that he was appealing the “entire rating decision including effective dates”; the Veteran checked boxes marked “Service Connection,” “Effective Date of Award”; and “Evaluation of Disability.” The RO issued a statement of the case (SOC) in August 2018 as to the August 2018 NOD and October 2017 rating decision. Subsequently, in August 2018 the RO issued a rating decision stating that there had been clear and unmistakable error (CUE) in the October 2017 rating decision; specifically, it had been error to grant separate evaluations for left and right “sciatic radiculopathy” while the Veteran’s ratings for right and left lower extremity radiculopathy were still running concurrently. The second August 2018 rating decision proposed combining the two separate sets of evaluations for right and left sciatic radiculopathy with the evaluations for right and left lower extremity radiculopathy, resulting in an overall reduction in the Veteran’s combined disability rating. The Veteran filed another NOD in September 2019 in relation to the proposed rating reduction. The Veteran was informed by correspondence in October 2018 that this NOD was premature, as no decision had yet been made on the claim. In September 2018 the Veteran filed a Form 9 perfecting his appeal regarding the October 2017 rating decision. In August 2019, the Board remanded the issues of service connection for sleep apnea; and, an appropriate rating for the Veteran’s thoracolumbar DDD and an associated effective date for further development. The Board noted that while an appeal related to the Veteran’s right and left “sciatic radiculopathy claims” had been certified by the RO, a ratings reduction was pending, and so the Board remanded the Veteran’s right and left “sciatic radiculopathy” claims for adjudication subject to the resolution of the pending rating reductions. The Board also exercised jurisdiction over a claim for TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) and remanded that claim for substantive adjudication in the first instance by the RO. In September 2019 the RO issued a rating decision increasing the Veteran’s right and left lower extremity radiculopathy ratings to 20 percent, effective December 1, 2019 and severing the grants of service connection for right and left sciatic radiculopathy, effective December 1, 2019. The Veteran submitted a VA Form 10182 in March 2020 identifying as the specific area of disagreement “effective date prior to [December 1, 2019] for award of bilateral lower extremity radiculopathy.” In May 2020 the RO issued a supplemental statement of the case (SSOC) reflecting substantive adjudication of the Veteran’s claims to increased ratings and the earlier effective dates for his radiculopathy (whether characterized as “sciatic radiculopathy” or lower extremity radiculopathy). The Veteran was denied entitlement to a disability rating in excess of 20 percent for his thoracolumbar DDD; denied disability ratings in excess of 20 percent for his right and left lower extremity radiculopathy; and denied entitlement to effective dates prior to August 8, 2017 for any awards of increased ratings for his thoracolumbar DDD, right lower extremity radiculopathy, and/or left lower extremity radiculopathy. In May 2020 the RO also issued a rating decision granting entitlement to service connection for sleep apnea; denying entitlement to TDIU; and assigning a temporary 100 percent rating for convalescence for the Veteran’s thoracolumbar DDD effective January 3, 2020 to February 28, 2020. A 20 percent rating for the thoracolumbar DDD was reinstated effective March 1, 2020. In August 2020 the Veteran filed a VA Form 10182 as to the denied TDIU claim. In February 2021 the Board dismissed the appeal initiated by the March 2020 Form 10182, concluding that there was no valid appeal related to the September 2019 severance of the concurrent radiculopathy rating and that the instant appeal, then pending pursuant to the Board’s August 2018 remand, took precedence over the appeal initiated by the March 2020 Form 10182. To initiate an appeal as to a particular issue, a Veteran must identify such issue as a specific determination with which the Veteran disagrees. 38 U.S.C. § 7105(2)(A). The March 2020 10182 identified only the following as a specific issue of disagreement: “effective date prior to [December 1, 2019] for award of bilateral lower extremity radiculopathy.” The Board again concludes that there has been no appeal initiated as to the September 2019 rating decision to sever the concurrent radiculopathy rating. The Board further concludes that there is no current appeal for an earlier effective date, per se, with respect to either the Veteran’s thoracolumbar DDD or radiculopathy disabilities. To the extent that there was such an appeal initiated, the Board finds that the claim is moot, as the ratings in question have since been severed and no appeal of that decision has been initiated. However, the Board is mindful of its “well-established” duty to maximize a Veteran’s benefits, as well as its obligation to liberally construe a Veteran’s claims. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008); see e.g. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (U.S. 2009). Consistent with the October 2017 rating decision, the Board construes the Veteran’s August 2017 claim for “increase in back condition” as encompassing claim for an increase in the radiculopathy ratings associated with this thoracolumbar DDD. In this regard, the Board also notes that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010); 38 C.F.R. § 3.400(o)(2). That is, the law effectively creates a one year “look back” period for increased rating claims. As the Veteran filed his claim for increase on August 8, 2017, the period on appeal with respect to the issues of appropriate ratings for his thoracolumbar DDD and radiculopathy claims effectively begins on August 8, 2016. Furthermore, a TDIU claim is inherent to any claim for increased rating(s). Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). While the Veteran initiated a separate appeal of the September 2019 denial of TDIU in August 2020, he declined the opportunity to provide his own testimony at a hearing, or to provide any other evidence under the provisions of the Appeals Modernization Act (AMA) that would apply to appeals of decisions issued after February 19, 2019. Additionally, the Veteran, who is represented by counsel now, and was so represented at the time of the August 2020 Form 10182, did not indicate that he wished to withdraw any pending appeal from the legacy system. The intent of the Form 10182 is thus ambiguous. The one-year period for initiating an appeal of the September 2019 rating decision has now passed. 38 C.F.R. § 20.203. In order to preserve the Veteran’s right to one review on appeal, the Board finds that there is no prejudice to the Veteran in continuing to exercise jurisdiction over his TDIU claim concurrently with the underlying increased ratings claims. Accordingly, the Board finds that the following issues are effectively before it on appeal: 1. Entitlement to a disability rating in excess of 20 percent for thoracolumbar DDD for the period from August 8, 2016 onward; and 2. entitlement to a disability rating in in excess of 10 percent for right lower extremity radiculopathy for the period from August 8, 2016 to November 30, and in excess of 20 percent from December 1, 2019 onward; and 3. entitlement to a disability rating in in excess of 10 percent for left lower extremity radiculopathy for the period from August 8, 2016 to November 30, and in excess of 20 percent from December 1, 2019 onward; and 4. entitlement to TDIU. 1. Entitlement to a disability rating of 20 percent, but no higher, for lumbar degenerative disc disease with thoracic degenerative disc disease for the period from August 10, 2016 to August 7, 2017 is granted; entitlement to a disability rating of 20 percent, but no higher, for lumbar degenerative disc disease with thoracic degenerative disc disease for the periods from August 8, 2017 to January 2, 2020, and from March 1, 2020 onward is denied. In August 2019 the Board remanded the Veteran’s thoracolumbar DDD claim and directed that he be afforded a VA examination to determine the current severity of his thoracolumbar DDD. As discussed below, the Veteran was afforded a VA examination in January 2020. The Board finds that there has been substantial compliance with its August 2019 remand directives, consistent with Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under 38 C.F.R. § 4.71a, both as in effect at the time of the Veteran’s August 2017 claims and presently, thoracolumbar DDD is rated under the General Rating Formula for Diseases and Injuries of the Spine. A disability rating of 20 percent requires a showing of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. A disability rating of 40 percent requires a showing of forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A disability rating of 50 percent requires a showing of unfavorable ankylosis of the entire thoracolumbar spine, while a disability rating of 100 percent requires a showing of unfavorable ankylosis of the entire spine. An April 2016 VA treatment note reflects a report by the Veteran that he worked as a mechanic on furnaces and that he performed a lot of bending and kneeling on the job. An August 10, 2016 VA examiner documented forward flexion of the thoracolumbar spine of up to 75 degrees and a combined range of motion of 195 degrees. The examiner documented no ankylosis of the spine. The Veteran reported flare ups, describing them as “sometimes [I] hit the floor and I can’t move. There is a pinching sensation that takes my breath away and I have to lay there a while.” In April 2017 the Veteran continued to report to VA treating providers that he worked in mechanical and furnace repair. A September 2017 VA examiner documented forward flexion of the thoracolumbar spine of 60 degrees and a combined range of motion of 185 degrees. The Veteran reported flare ups manifesting as “muscle spasms, numbness, and sharp pain that goes to the front of my body.” The examiner documented no ankylosis of the spine and reported that there was no additional functional loss after observed repetitive use and that the examination results were consistent with the Veteran’s statements describing functional loss during a flare up. In May 2018 the Veteran reported that he worked at a propane station. A July 2018 VA examiner documented forward flexion of 60 degrees and combined range of motion of 180 degrees. The examiner documented no ankylosis of the spine. A May 2019 VA treating provider note reflects pain on flexion, extension, and lateral bending, as well as pain on palpation. The Veteran described his low back symptoms as worsening. In September 2019 the Veteran described his symptoms as having improved somewhat since their onset, but that they had worsened over the previous 12 months; at that time the Veteran reported that he worked in a factory where he did not do any lifting exceeding 50 pounds. A January 2020 VA examiner documented the Veteran’s reports of flare ups of his back disability 4 or 5 times per week. The Veteran described the flare ups as lasting “most of the day.” At that time, the Veteran described his disability as having gotten progressively worse. The January 2020 VA examiner documented initial range of motion results of forward flexion of 60 degrees and a combined range of motion of 155 degrees. After observed repetitive use, the examiner documented forward flexion of 50 degrees and a combined range of motion of 140 degrees; this range of motion was noted to apply to repeated use over time or during flare ups. The examiner documented positive guarding and/or muscle spasm resulting in abnormal gait and/or abnormal spine contour. Additional factors contributing to functional impairment were disturbance of locomotion, interference with sitting, and interference with standing. Later in January the Veteran had a 4-week follow up appointment with VA treating providers after surgical L4-S1 decompression. At that time he reported that he was doing well, with no pain in his back. The Veteran reported that he worked in a factory making boats, where he occasionally lifted up to 50 pounds. The Veteran filed his claim for an increased rating on August 8, 2017. The effective date for an award of an increased rating may be up to one year prior to the date of the claim. A 10 percent rating is currently in effect for the period from August 8, 2016 to August 7, 2017. As discussed above, it is the responsibility of the Board to interpret reports of examination in light of the whole recorded history and reconcile the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability. 38 C.F.R. § 4.2. The Board must consider the disability from the point of view of the Veteran working or seeking work. Id. In evaluating a claim for disability benefits, when 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. In this light, the Board acknowledges the Veteran’s statement to the August 2016 VA examiner that flare ups of his thoracolumbar DDD “took his breath away” and forced him to “lay there for a little while,” and that he “can’t move.” However, in evaluating the whole recorded history and various reports of the Veteran’s disability, the Board also notes the Veteran’s April 2016 statement to VA treating providers that he worked as a mechanic, which involved bending and kneeling, and that he continued to work in this role until at least April 2017; and the September 2017 VA examiner’s opinion that the contemporaneous range of motion testing was consistent with the Veteran’s statements describing functional loss during a flare up; the Veteran’s statements to treating providers and VA examiners from May 2019 onward that the general course of his disability had been one of worsening; and evidence relating to the Veteran’s thoracolumbar DDD throughout the entire period on appeal. In light of the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s thoracolumbar DDD manifested as manifested as forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or as a combined range of motion of the thoracolumbar spine not greater than 120 degrees for the period prior to August 8, 2017. The weight of the evidence is against a finding that the Veteran’s thoracolumbar DDD manifested as any degree of ankylosis of the thoracolumbar spine, or as limitation of forward flexion of the thoracolumbar spine 30 degrees or less at any point during the period on appeal. A temporary 100 percent rating for convalescence for the Veteran’s thoracolumbar DDD is in effect for the period from January 3, 2020 to February 28, 2020. Accordingly, the Board finds that the criteria for a disability rating of 20 percent but no higher, for thoracolumbar DDD for the period prior to August 8, 2017 are met, and the same is hereby granted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. The Board finds that that the criteria for a disability rating in excess of 20 percent for the periods from August 8, 2017 to January 2, 2020, and from March 1, 2020 onward have not been met, and the same is hereby denied. Id. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy for the period from August 8, 2016 to November 30, 2019 and in excess of 20 percent from December 1, 2019 onward; and entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy for the period from August 8, 2016 to November 30, 2019 and in excess of 20 percent from December 1, 2019 onward; and entitlement to a total disability rating based on individual unemployability (TDIU) are remanded. In August 2019 the Board directed that the Veteran be afforded a VA examination to determine the current severity of his thoracolumbar DDD. As discussed above, an examination was obtained in January 2020, and the Board found that this examination was responsive to the August 2019 remand directives as it related to limitations of the Veteran’s thoracolumbar range of motion. However, appropriate rating of the Veteran’s thoracolumbar DDD entails appropriate, separate ratings for associated lower extremity radiculopathy. 38 C.F.R. § 4.71a. The Board finds that the January 2020 VA examination is not adequate in relation to the Veteran’s right and left lower extremity radiculopathy. The January 2020 VA examiner documented their opinion as to the severity of the Veteran’s right and left lower extremity radiculopathy, described as “mild,” “moderate,” or “severe.” However, the Board finds that this examination was inadequate as it does not reflect consideration of all evidence of record. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). While the January 2020 VA examiner’s report specifically notes radiological studies of the Veteran’s spine from throughout the period on appeal, it does not reflect review or consideration of the following evidence in the Veteran’s VA treatment records relating to his right and left lower extremity radiculopathy: September 2016 statements by the Veteran regarding tingling and numbness in his bilateral feet, including a report that he had recently fallen twice on stairs because he could not feel the step; a November 2016 electromyographic study; and evaluations of the Veteran’s radiculopathy symptoms in February 2017, March 2017, April 2018, May 2019, September 2019, and January 2020. The Board finds that the January 2020 VA examination is thus inadequate in relation to the Veteran’s radiculopathy symptoms, and therefore not responsive to the August 2019 remand directives. The Board further notes that it is unclear whether any of the other VA examinations that addressed the Veteran’s radiculopathy symptoms, dated August 2016, September 2017, and July 2018 reflected consideration of the evidence identified above. In light of the foregoing, the Veteran’s right and left lower extremity radiculopathy claim should be remanded to obtain a medical opinion that reflects consideration of all lay and medical evidence of record. The Board further finds that the Veteran’s claim to TDIU is inextricably intertwined the matter of appropriately rating his underlying disabilities. Thus, the Veteran’s TIDU claim should be remanded for readjudication consistent with any development undertaken with respect to his right and left lower extremity radiculopathy claims. The matters are REMANDED for the following action: 1. Forward the claims file, including this remand, to the examiner who provided the January 2020 opinion. If the January 2020 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed, to include the following evidence in the Veteran’s VA treatment records: September 2016 statements by the Veteran regarding tingling and numbness in his bilateral feet, including a report that he had recently fallen twice on stairs because he could not feel the step; a November 2016 electromyographic study; and evaluations of the Veteran’s radiculopathy symptoms in February 2017, March 2017, April 2018, May 2019, September 2019, and January 2020.. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. (Continued on the next page)   The examiner should provide an opinion as to the severity of the Veteran’s right and left lower extremity radiculopathy throughout the period on appeal. 2. Following the completion of remand directive 1, Readjudicate the Veteran’s TDIU claim. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.