Citation Nr: 21031913 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 03-20 168 DATE: May 25, 2021 ORDER Entitlement to an effective date of December 22, 2010, but no earlier, for the assignment of a 20 percent initial disability rating for left upper extremity radiculopathy is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for lumbosacral strain is remanded. Entitlement to a disability rating in excess of 10 percent for cervical spine arthritis prior to June 20, 2017, in excess of 20 percent from June 20, 2017 to October 22, 2019, and in excess of 30 percent thereafter is remanded. Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. FINDINGS OF FACT 1. A December 2004 rating decision granted service connection for cervical spine arthritis with an initial disability rating of 10 percent effective December 10, 2003. The Veteran did not submit a timely notice of disagreement. As such, the December 2004 rating decision became final. 2. It is factually ascertainable that the Veteran's left upper extremity radiculopathy symptoms had developed by December 22, 2010. CONCLUSION OF LAW The criteria for an effective date of December 22, 2010, but no earlier, for the assignment of a 20 percent initial disability rating for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1985 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran ratings in excess of 10 percent for the Veteran's lumbosacral strain, cervical spine arthritis, and right knee patellofemoral syndrome. The rating decision also granted service connection for left upper extremity radiculopathy with an effective date of October 23, 2012. The Veteran's claims have followed different paths. Particularly, the appeal regarding an earlier effective date for the award of service connection for left upper extremity radiculopathy has been appealed to the Court of Appeals for Veterans Claims (Court) twice. The Veteran's appeals regarding increased ratings for her lumbosacral strain, cervical spine arthritis, and right knee patellofemoral syndrome are addressed in the remand section. In a May 2017 decision, the Board denied an earlier effective date for the Veteran's award of service connection for left upper extremity radiculopathy. The Veteran appealed that denial to the Court. In March 2018, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for both parties and remanded it to the Board for further proceedings consistent with the JMPR. The JMPR noted that the Veteran was service connected for a cervical spine disability in January 2005 and treated for left upper extremity radiculopathy in September and October 2011. The representatives agreed that remand was warranted for the Board to consider whether the treatment records served as an informal claim associated with an increased evaluation of her cervical spine disability. In support, the JMPR cited 38 C.F.R. § 3.157(b)(1). In a July 2018 decision, the Board granted an effective date of November 18, 2011, but no earlier. The Veteran appealed the denial of an effective date earlier than November 18, 2011, to the Court. In June 2019, the Court granted another JMPR filed by representatives for both parties and remanded it to the Board for further proceedings consistent with the JMPR. The case has returned to the Board for further appellate proceedings. The Veteran seeks an effective date earlier than November 18, 2011, for the award of a 20 percent rating for her left upper extremity radiculopathy. A December 2004 rating decision awarded service connection for the Veteran's cervical spine disability with an initial disability rating of 10 percent effective December 10, 2003. She did not appeal that decision. Thus, the decision became final. On October 23, 2012, the Veteran submitted an increased rating claim for her cervical spine disability and "[s]ervice-connection for bilateral upper extremity radiculopathy, secondary to the neck condition." See October 2012 Veteran's Correspondence. In an August 2013 rating decision, the AOJ granted service connection for left upper extremity radiculopathy with an initial evaluation of 10 percent effective October 23, 2012. As noted above, the May 2017 Board decision found a 20 percent rating warranted from October 23, 2012. The July 2018 Board decision found that an effective date of November 18, 2011, but no earlier was warranted. The effective date for an award of service connection based on an original claim generally "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation for disability compensation is the "date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. During the pendency of the appeal, the definition of what constitutes a valid claim has changed. For the purposes of this case, a claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2012). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). Important here, 38 C.F.R. § 3.157 (2010), states: Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. 38 C.F.R. § 3.157(b) (2010). The evidence at issue here is VA treatment records from December 2010. Relevantly, § 3.157(b)(1) states that "the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim." 38 C.F.R. § 3.157(b)(1). The record shows that the Veteran first reported her left upper extremity radiculopathy to a VA physician on December 22, 2010. See October 2011 VA treatment records. She complained of a "tingling feeling" and was diagnosed with a left upper extremity cervical radiculopathy. Id. Pursuant to Note (1) of the General Formula for Diseases and Injuries of the Spine (General Formula), VA is to evaluate any associated objective neurologic abnormalities separately under an appropriate Diagnostic Code. See 38 C.F.R. § 4.71A, Diagnostic Codes 5235-5243, Note (1). Therefore, determining whether separate or higher ratings should be awarded for objective neurological complications is part and parcel of an increased rating claim. Here, the Veteran first complained of her left upper extremity radiculopathy on December 22, 2010. A VA physician determined its origin was result from the cervical spine. Thus, the Board finds that the December 22, 2010, treatment entry shows a worsening of the Veteran's cervical spine disability since it was last evaluated. See id. Such worsening found during treatment rendered at a VA hospital satisfies the requirements of 38 C.F.R. § 3.157(b)(1). See Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). It follows then that the December 22, 2010, treatment entry is an informal claim for increased benefits as a result of her newly developed left upper extremity radiculopathy. See 38 C.F.R. § 3.157(b). This claim remained open until adjudicated in the August 2013 rating decision. Thus, an effective date of December 22, 2010 is warranted for the service connection of the left upper extremity radiculopathy. As discussed in the July 2018 Board decision, the severity of the Veteran's left upper extremity radiculopathy included deep tendon reflexes at 1+. See October 2011 VA treatment records. Moreover, she complained of a tingling sensation that started on December 22, 2010. Id. Her radiculopathy symptoms appear to have remained consistent and constant between December 22, 2010, and November 18, 2011. Thus, a 20 percent rating is appropriate for the Veteran's left upper extremity radiculopathy from December 22, 2010. The evidentiary record is silent for any complaints, treatment, or allegation of left upper extremity radiculopathy prior to December 22, 2010. Therefore, there is no basis in which the Board can grant an earlier effective date prior to December 22, 2010. Indeed, neither counsel nor the Veteran have intimated any other basis. Accordingly, the Board finds the criteria for an effective date of December 22, 2010, but no earlier, for the assignment of a 20 percent initial disability rating for left upper extremity radiculopathy is granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND As noted above, this matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran ratings in excess of 10 percent for the Veteran's lumbosacral strain, cervical spine arthritis, and right knee patellofemoral syndrome. A June 2017 rating decision assigned a 20 percent rating for the Veteran's cervical spine arthritis from June 20, 2017. A June 2020 rating decision assigned a 30 percent rating for the cervical spine disability from October 23, 2019. Finally, an April 2019 rating decision granted a separate rating for right upper extremity radiculopathy and assigned a rating of 40 percent from November 27, 2018. The Board notes that additional evidence, to include VA treatment records concerning the Veteran's cervical spine, lumbosacral spine, and right knee, have been associated with the evidentiary record since the October 2019 supplemental statement of the case (SSOC). Although the Veteran's substantive appeal was filed after February 2, 2013, the VA treatment records were obtained by VA. Indeed, the Veteran and her counsel were notified of the additional evidence in a December 2020 letter that requested a waiver, but neither have responded. Thus, the Board must presume the Veteran wants to exercise her right to have the AOJ review the evidence in the first instance. Therefore, the claim must be remanded for adjudication by the AOJ and the issuance of another SSOC. On remand, the Board finds that new examinations are also necessary for the reasons that follow. 1. Entitlement to a disability rating in excess of 10 percent for lumbosacral strain is remanded. The Veteran was last afforded a VA examination for her lumbosacral strain in August 2019. During the examination, the Veteran endorsed pain with prolonged sitting, standing, and walking. See August 2019 VA examination report. At minimum, this shows that the Veteran's pain increases after prolonged sitting, standing, and walking. Thus, she has endorsed flare-ups of her lumbosacral strain. The VA examiner stated that the Veteran did not have flare-ups and no estimate as to any degree of range of motion loss or other functional impairment was provided. Id. In Sharp v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "estimate the [Veteran's] functional loss due to flares based on all the evidence of record (including the [Veteran's] lay information) or explain why [he or she] could not do so." 29 Vet. App. 26, 35 (2017). As such, the August 2019 VA examination is inadequate for rating purposes. Id. The Veteran should be provided a new examination on remand. 2. Entitlement to a disability rating in excess of 10 percent for cervical spine arthritis prior to June 20, 2017, and in excess of 20 percent from June 20, 2017, to October 22, 2019, and in excess of 30 percent thereafter is remanded. The Veteran was last afforded a VA examination in October 2019. The VA examiner explained that the examination was conducted during a flare-up and appears to provide a measurement of range of motion at the time of examination. See October 2019 VA examination report. However, an April 2019 VA examiner noted that the Veteran's of range of motion loss is variable depending on the Veteran's usage. See April 2019 VA examination report. It is unclear what the severity of the Veteran's flare-up was at the time of the October 2019 VA examination. Unfortunately, the April 2019 VA examination report did not estimate the degree of motion loss when the cervical spine is at its worse. Id. As such, the April 2019 and October 2019 VA examinations are inadequate for rating purposes. Id. The Veteran should be provided a new examination on remand. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). 3. Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. The Veteran was last afforded a VA examination for her right knee in August 2019. During the examination, the Veteran endorsed stiffness, swelling, and pain with prolonged sitting, standing, and walking. See August 2019 VA examination report. At minimum, this shows that the Veteran's pain increases after prolonged sitting, standing, and walking. Thus, she has endorsed flare-ups of the right knee. The VA examiner stated that the Veteran did not have flare-ups and no estimate as to any degree of range of motion loss or other functional impairment was provided. Id. As such, the August 2019 VA examination is inadequate for rating purposes. Id. The Veteran should be provided a new examination on remand. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for her lumbosacral, cervical, and right knee disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for appropriate examinations to determine the current nature and severity of her lumbosacral, cervical, and right knee disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.