Citation Nr: 21042551 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 12-20 980 DATE: July 13, 2021 ORDER Entitlement to a separate 10 percent disability rating for left lower extremity radiculopathy, associated with lumbosacral strain effective November 5, 2011, is granted. FINDINGS OF FACT 1. The date of claim for entitlement to compensation for a left leg radiculopathy is July 12, 2010. 2. Entitlement arose for compensation for left leg radiculopathy on November 5, 2011, the record shows notations and subjective complaints of leg paresthesias and constant tingling in the toes of the left foot, demonstrating mild impairment. CONCLUSION OF LAW Beginning November 5, 2011, but no earlier, the criteria for a 10 percent disability rating for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1986 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Board granted an initial disability rating in excess of 10 percent for service-connected lumbosacral strain and lumbar degenerative disc disease (DDD) prior to December 1, 2016 and in excess of 20 percent from December 1, 2016. As part of the denial, the Board also found that the Veteran did not have any associated neurological abnormalities. An April 2019 Joint Motion for Partial Remand (JMPR) noted that the parties agreed that the Board's May 2018 statement of reasons and bases was inadequate because the Board failed to adequately address favorable medical evidence of record regarding radicular pain in the left lower extremity. In October 2019, in relevant part, the Board granted a separate 10 percent disability rating for left lower extremity radiculopathy as of April 4, 2013. The Veteran subsequently appealed the October 2019 Board decision to the U.S. Court of Appeal for Veterans Claims (Court). Pursuant to a February 2021 JMPR, the Court vacated that portion of the Board's October 2019 decision that denied entitlement to a separate disability rating for left lower extremity radiculopathy, earlier than April 4, 2013 and remanded the matter for readjudication. The Court also noted that the Veteran waived his appeal from that part of the Board decision that denied entitlement to a rating higher than 10 percent from April 4, 2013 to November 30, 2016 and a compensable disability rating for the left lower extremity radiculopathy beginning December 1, 2016. As such, these matters are not before the Board. Earlier Effective Date Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of the claimant's application. 38 U.S.C. § 5100(a). Entitlement to an effective date prior to April 4, 2013 for the grant of a separate disability rating for left lower extremity radiculopathy Again, as noted in the JMPR, the Veteran filed a claim for entitlement to service connection for a back condition in July 2010. In a July 2011 rating decision, the RO granted service connection for lumbosacral strain (claimed as severe low back pain) and provided a 10 percent rating, effective July 12, 2010. The Veteran disagreed with the rating assigned and, in evaluating the increased rating claim for the back, which was appealed to the Board. In an October 2019 decision, the Board assigned a separate 10 percent rating for left lower extremity radiculopathy associated with lumbosacral strain, effective April 4, 2013. As the Veteran seeks an effective date prior to April 4, 2013 for the separate grant of a 10 percent disability rating for left lower extremity radiculopathy, only evidence preceding this date will be discussed below. In determining effective dates, the date of claim and the date entitlement arose are the relevant dates. In this case, as the left lower extremity neurological condition is related to the Veteran's service-connected low back condition, the date of claim is the same as the date of claim for the low back condition, July 12, 2010. The next question is when entitlement arose for a separate rating for a left lower extremity neurological condition. In reviewing the record, the Veteran underwent a VA spine examination in June 2011, at which time the examiner noted a diagnosis of degenerative disc disease of the lumbar spine. At that time, the Veteran reported no radiation of the pain into the lower extremities. Upon physical examination, the examiner noted there was no spasm on examination and the Veteran had normal muscle strength in all four extremities with normal symmetric deep tendon reflexes and normal sensation. The examiner further noted that straight leg raise was negative bilaterally. A November 5, 2011, general medical VA examination report notes stiffness, back pain, and leg paresthesias. The examiner also noted constant tingling in the toes of the left foot. The examiner performed a sensory examination and reported decreased sensation in the L4 and the L5 nerves affecting the left lower extremity. There was also reduced strength of 4/5 in the left hip, knee, ankle, and great toe. The examiner assessed the Veteran with a lumbosacral strain. On VA spine examiner in November 2012, muscle strength testing was normal for all extremities. In addition, reflex and sensory examination were normal as well and straight leg raising test was negative bilaterally. The examiner reported that the Veteran did not have radicular pain or any other sings of symptoms due to radiculopathy. The examiner also noted that the Veteran did not have any other neurologic abnormalities or findings related to a thoracolumbar spine condition. Upon review of the record, the Board finds that entitlement arose on November 5, 2011, when neurological deficits were first noted in the left lower extremity. There is no evidence of such deficits prior to this date. In making this determination, the Board acknowledges that the Veteran subjectively complained of back pain radiating into his left leg in April 2001, February 2002, and in April 2010. However, the complaints in April 2001 and February 2002 are more than a year prior to the date of claim in July 12, 2010, thus, they cannot serve as dates when entitlement arose. As for the April 2010 complaint, while this complaint did occur within one year prior to the July 12, 2010, claim, the June 2011 examination found no evidence of any neurological deficits, thus, the Board finds that while these complaints may be credible as to pain in the left lower extremity, they are not evidence that this pain was neurological in nature or related to his low back condition. Thus, it cannot serve to establish the date entitlement arose as within one year of the July 12, 2010 date of claim. Accordingly, since November 5, 2011 is the later of the two dates, date of claim (July 12, 2010) and date entitlement arose (November 5, 2011), this is the proper effective date for the grant of a separate disability rating for the left lower extremity. Further, given that the Veteran's neurological symptoms at this time were only sensory in nature, the Board finds that they were mild, and thus, a rating greater than 10 percent for this period is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In sum, the Board finds that from November 5, 2011, to April 4, 2013, the Veteran meets the criteria for a separate 10 percent disability rating for radiculopathy of the left lower extremity, and the claim is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.