Citation Nr: 21042249 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-45 419 DATE: July 12, 2021 REMANDED Entitlement to an effective date earlier than April 17, 2009 for the award of service connection for bilateral pars defect with lumbar spondylolisthesis at L4-5 is remanded. Entitlement to an initial compensable rating for residual surgical scar, status post-surgery of the lumbar spine, is remanded. Entitlement to a higher initial rating for left lower extremity radiculopathy associated with the lumbar disability, rated as 10 percent disabling since May 11, 2011 and 20 percent disabling since June 19, 2015, is remanded. Entitlement to a higher initial rating for right lower extremity radiculopathy associated with the lumbar disability, rated as 20 percent disabling since June 19, 2015, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, for the time period prior to April 4, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1980 to January 1984. This appeal comes before the Board of Veterans' Appeals (Board) from several rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Waco, Texas (hereinafter agency of original jurisdiction (AOJ)). In May 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. Procedurally, in a May 2015 decision, the Board granted entitlement to service connection for chronic low back disability, diagnosed as a bilateral pars defect with lumbar spondylolisthesis at the L4/L5 vertebrae with radiculopathy. In pertinent part, an August 2015 AOJ rating decision implemented the Board's decision assigning a 20 percent rating for bilateral pars defect with lumbar spondylolisthesis effective April 17, 2009, and a 40 percent rating effective June 19, 2015; a 20 percent rating for right lower extremity radiculopathy effective June 19, 2015; a 20 percent rating for right lower extremity radiculopathy effective June 19, 2015; and a noncompensable rating for residual surgical scar of the lumbar spine effective June 19, 2015. In October 2015, the Veteran submitted VA Form 21-0958 (Notice of Disagreement) specifically appealing the evaluation and effective dates of awards for right and left lower extremity radiculopathy, and his residual surgical scar. In January 2016, the Board remanded these claims to the AOJ for issuance of a statement of the case. See Manlincon v. West. 12 Vet. App. 238 (1999). Later in the record, the record contains another VA Form 21-0958 (Notice of Disagreement) stamped as received on September 8, 2016, expressing disagreement with the effective date of award and evaluations for lumbar spine disability, left lower extremity radiculopathy as well as the effective date of awards for TDIU and Chapter 35 educational assistance. 1. Entitlement to an effective date earlier than April 17, 2009 for the award of service connection for bilateral pars defect with lumbar spondylolisthesis at L4-5 The Veteran's representative has argued that the Veteran had timely appealed an issue of entitlement to an effective date earlier than April 17, 2009 for the award of service connection for bilateral pars defect with lumbar spondylolisthesis at L4-5. As noted above, an August 2015 AOJ rating decision implemented the Board's decision assigning a 20 percent rating for bilateral pars defect with lumbar spondylolisthesis effective April 17, 2009. It appears that the AOJ notified the Veteran of this decision, and his appellate rights, by letter dated September 22, 2015. The Veteran submitted an NOD, date stamped as received by the AOJ on September 6, 2016, disputing both the initial rating and effective date of award of service connection. The Veteran incorrectly noted that the date of notice was July 2016 (which pertained to the award of TDIU which is currently on appeal). Unfortunately, the AOJ did not acknowledge the NOD and a statement of the case has not been issued as required by law. Manlincon v. West. 12 Vet. App. 238 (1999). This issue, accordingly, must be remanded. 2. Entitlement to an initial compensable rating for residual surgical scar, status post-surgery of the lumbar spine. 3. Entitlement to a higher initial rating for left lower extremity radiculopathy associated with the lumbar disability, rated as 10 percent disabling prior to June 19, 2015 and 20 percent thereafter. 4. Entitlement to a higher initial rating for right lower extremity radiculopathy associated with the lumbar disability, rated as 20 percent disabling since June 19, 2015. 5. Entitlement to TDIU for the time period prior to April 4, 2011. The Board notes that the above claims for higher initial ratings and TDIU are potentially inextricably intertwined with the issue of entitlement to an earlier effective date of award for service connection for bilateral pars defect with lumbar spondylolisthesis. See Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 (April 2021). Thus, the Board cannot reach a final determination for these issues at this time. However, the Board documents for future reference a summary of the facts and requests AOJ reconsideration of additional issues. The Veteran's lumbar scar is rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The Veteran first underwent a VA examination in September 2009. The examiner noted that the lumbar scar was neither painful nor unstable and was well healed and non-tender. No functional impact was noted. The examiner noted that He has a well healed 4cm upper lumbar spine scar that is highly mobile and does not adhere to the underlying tissue. There is no tenderness to palpation. There is no keloid formation. There is no subcutaneous tissue loss. The scar does not restrict motion. The Veteran underwent a second VA examination in June 2015, which confirmed a scar on his lumbar region. The scar was observed to be 7 cm in length and .3 cm in width. The examiner noted that the lumbar scar was neither painful nor unstable and was well healed and non-tender. A November 2015 private medical record described the Veteran as having a lumbar surgical scar which caused him to experience hyperesthesia around the scar tissue. On January 18, 2018, the Veteran underwent another lumbar spine surgery, which resulted in a larger scar. On May 15, 2018, the Veteran testified that his lumbar scar was painful. Specifically, in his May 2018 Board testimony, the Veteran testified that I couldn't imagine why, because ever since that surgery, the pain around the scar has always been there. Again, the pain itself is kind of sporadic as far as the degree or level of pain, but as far as the pain and the irritation that's associated with it, that's always been there ever since the surgery. Notably, the Veteran was referring to the surgery performed in 2006. In a July 2018 private Disability Benefits Questionnaire, the private examiner noted that the Veteran had a lumbar scar. The examiner noted that the lumbar scar was neither painful nor unstable. The Veteran underwent another VA scar examination on December 16, 2019, which confirmed two scars on his lumbar region. The scars were observed to be 12 cm in length and .2 cm in width. The examiner noted that the lumbar scar was painful. However, the scars were stable, non-tender, and did not result in underlying tissue damage. The Veteran also contends that he is entitled to higher ratings for his bilateral lower extremity radiculopathy A March 2009 private treatment record indicates that the Veteran was assessed with chronic back pain with left leg weakness and paresthesia after he complained of pain radiating from his back. There was 3/5 strength and deep tendon reflexes were 2/4. The Veteran's pain was determined to be associated with the left sciatica nerve. A July 2009 VA clinic record noted a normal gait. A July 2009 neurosurgery consultation noted the Veteran's description of significant bilateral lower extremity pain, worse in the right leg, aggravated by activity. Examination revealed a slightly antalgic gait, with full strength. However, potential weakness was difficult to assess due to pain-limiting strength. There were normal reflexes but diminished sensation without a dermatomal pattern in the left lower extremity. The Veteran was assessed with symptomatic spondylolisthesis which could be severely lifestyle limiting due to pain and surgery was recommended. An August 2009 examination noted 5/5 strength in the left lower extremity but also noted report of right leg pain. During a September 2009 VA examination, the Veteran described pain which radiated down into his right postero-lateral left to the lateral two toes. He had no complaints of numbness, but did report occasional clicking and popping. He had feelings of give-way that caused him to fall. Examination revealed an antalgic gait and 2/4 reflexes with 5/5 strength of the extensor hallucis longus. An April 2011 VA neurosurgery consultation noted that the Veteran manifested chronic low back pain which radiated into the right hip and down the right lower extremity (RLE). He had numbness and intermittent weakness. It was noted that his medications of hydrocodone and cyclobenzaprine had become less effective. An L4-5 fusion was recommended. A statement from his spouse, received in September 2012, described the Veteran's difficulties due to feet, low back and left index finger conditions. She had observed the Veteran to be in unbearable pain with stumbling and, on occasions falling, due to an inability to maintain balance and equilibrium. There were occasions were he was unable to walk 3 to 3 feet, and he was unable to perform small tasks in the house. An October 2012 private neurology consultation noted the Veteran's report of low back pain with radicular right leg pain. Examination was significant for right +1 extensor toe weakness with bilateral active and equal Achilles and patellar reflexes, no pathological reflexes, and no neurological or vascular deficits. The Veteran could toe and heel walk. A May 2014 VA physical therapy record noted bilateral knee pain with 3+/5 strength in the quadriceps and hamstrings, and 4-/5 strength in patellar flexion and dorsiflexion. At a hearing in 2015, the Veteran described a history of numbness and radiation down his right leg. He reported problems with prolonged standing. Upon VA lumbar spine examination on June 19, 2015, the Veteran reported his condition had worsened and that he had bilateral lower extremity radicular symptoms. He ambulated with a cane for stabilization and support. He could not tolerate any prolonged immobility with either sitting or standing. There was reduced 3/5 strength (active against gravity) for hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion and great toe extension bilaterally. There was no muscle atrophy. Deep tendon reflexes were normal (2+) bilaterally. Sensory examination was significant for decreased sensation in the lower leg/ankle and toes bilaterally. There was moderate intermittent pain, paresthesias and numbness bilaterally. The examiner provided an assessment of moderate sciatic nerve root involvement bilaterally. The Veteran was noted to use a cane and brace constantly due to his back condition. A July 2015 private medical record noted that, since the last visitation, the Veteran had developed radicular pain into his left leg in addition to his right. The Veteran reported significant difficulty with sitting for any length of time causing him increased back and radicular pain. He ambulated with the assistance of a cane or walking stick. It was noted that, when seen in October 2012 and April 2013, the Veteran was not complaining of left leg pain. Examination was significant for sensory deficit along the L5 nerve root with 1+ weakness of the extensors on the right, and sensory deficit along the S1 nerve root with absent left Achilles reflex. It was felt that the Veteran's condition had deteriorated significantly since the last visit, and that the Veteran was totally disabled. In November 2015, this physician described the Veteran as having sciatic nerve damage, severe in nature, with partial paralysis bilaterally. There was now +2 extensor toe weakness on the right and +1 extensor toe weakness on the left. Achilles reflexes were diminished bilaterally. A November 2015 private medical record noted that the Veteran had been a patient since 2006 with grade 1 to 2 severe spondylolisthesis at L4-5 and compression of disc space and severe bilateral lower extremity radiculopathy that had been persistent since prior to October 2006. The Veteran's severe radiculopathy and severe spondylolisthesis prevented him from performing any type of sedentary employment. A November 2017 private neurosurgery consultation included the Veteran description of piercing pain with radiation to both legs. Examination was significant for guarding weakness in both lower extremities and diminished ankle jerk on the right. A January 17, 2018 noted findings of 5/5 power of the lower extremities with sensation intact to light touch bilaterally. On January 18, 2018, the Veteran underwent lumbar spine surgery. A February 2018 neurosurgery consultation noted that the Veteran's left thigh pain was less severe after surgery, but that his right radicular symptoms had worsened. Examination showed a mildly antalgic gait with symmetric and intact strength and sensation with no focal motor weakness. A March 2018 aid and attendance examination report noted the Veteran to have severe pain and radiculopathy. He could not perform prolonged standing or bending, and fine motor skills could be difficulty with radicular pain and numbness. It was noted that there was no focal motor weakness. At a hearing in May 2018, the Veteran described constant, but sporadic, pain in his left lower extremity which fluctuated depending on his activity level. He had right lower extremity pain and numbness which, since his recent surgery, now extended to the whole foot and toes. He experienced increased pain when sitting too long. He felt that his current radiculopathy symptoms were equivalent to what he had experienced since 2006. He recalled having bilateral lower extremity symptoms since the 2006 surgery. He further reported that, ever since the 2006 surgery, he had experienced irritation with his surgical scar. The Veteran submitted a July 2018 private Disability Benefits Questionnaire completed by his treating physician. It was noted that the Veteran's lower extremity limited range of motion affected his ability to perform activities of daily living. Muscle strength testing in the right lower extremity was -3/5 in ankle dorsiflexion, 3/5 in ankle plantar flexion and hip flexion, +3/5 in knee flexion and extension, and 4/5 in great toe extension. The left lower extremity demonstrated 3/5 strength in hip flexion and -4/5 strength in all other planes of motion. There was no muscle atrophy. There were hypoactive reflexes in the knees and absent reflexes in the ankles. There was decreased sensation in the right thigh/knee, lower leg/ankle and foot/toes, and decreased sensation in the left lower leg/ankle and foot/toes. There was severe constant pain, severe intermittent pain, severe dull pain, severe paresthesias and/or dysesthesias, and severe numbness. The left lower extremity had severe involvement of the femoral and sciatic nerves, and the right lower extremity had severe involvement of the sciatic nerve. It was noted that foraminal stenosis caused radicular pain, weakness and paresthesia. Upon VA examination in December 2019, the Veteran reported his condition had worsened and affected his left leg with limitations of movement and having to use prosthesis to walk. Reflex examination was hypoactive for both ankles and absent for the knees. Sensory examination showed decreased sensation to light touch for the upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1) and foot/toes (L5) bilaterally. Straight leg testing was positive for the left side. The examiner reported the Veteran with radiculopathy manifested by constant pain of moderate severity in the left lower extremity, moderate intermittent pain in the left lower extremity, moderate paresthesias and/or dysesthesias in the left lower extremity and numbness of mild severity in the left lower extremity. There was severe intermittent pain, and moderate constant pain, paresthesias and/or dysesthesias and numbness of the right lower extremity. The examiner reported the radiculopathy involved the L4/L5/S1/S2/S3 nerve roots for both extremities and was mild for the left side and moderate for the right. Given the above, the Board notes that the Veteran may have involvement of more than one lower extremity nerve root which may entitle him to separate ratings. This issue must be addressed on remand. Accordingly, these matters are REMANDED for the following: 1. Associate with the claims folder updated private and VA treatment records. 2. Issue the Veteran a statement of the case on the issue of entitlement to an effective date earlier than April 17, 2009 for the award of service connection for bilateral pars defect with lumbar spondylolisthesis at L4-5. See VA Form 21-0958 (Notice of Disagreement) stamped as received on September 8, 2016. 3. Readjudicate the issues on appeal including specific consideration of whether separate ratings are warranted for involvement of different nerve roots causing neurologic symptoms of the right and left lower extremities. See, e.g., July 2018 private Disability Benefits Questionnaire and December 2019 VA examination report. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor 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.