Citation Nr: 21042843 Decision Date: 07/14/21 Archive Date: 07/14/21 DOCKET NO. 18-38 869 DATE: July 14, 2021 ORDER Entitlement to a compensable evaluation for service-connected erectile dysfunction (ED) has been withdrawn. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension (HTN) is granted. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected cervical spine disability is granted. Entitlement to service connection for hypertension (HTN), to include as secondary to OSA is granted. Entitlement to a rating in excess of 20 percent for degenerative joint disease (DJD) of the cervical spine is denied. Entitlement to a rating in excess of 10 percent prior to October 12, 2015, a rating in excess of 20 percent prior to April 13, 2017, and in excess of 40 percent thereafter for lumbar degenerative disc disease (DDD) is denied. Entitlement to a rating of 40 percent disabling, but no higher, for right upper extremity radiculopathy (RUE) is granted. Entitlement to a rating of 30 percent disabling, but no higher, for left upper extremity radiculopathy (LUE) is granted. Entitlement to a rating of 40 percent disabling, but no higher, for bilateral lower extremity radiculopathy (BLE) is granted. Entitlement to an earlier effective date prior to May 8, 2014, for the grant of service connection with an evaluation of 10 percent for right upper extremity (RUE) radiculopathy is denied. Entitlement to an earlier effective date prior to May 8, 2014, for the grant of service connection with an evaluation of 10 percent for right lower extremity (RLE) radiculopathy is denied. FINDINGS OF FACT 1. On February 13, 2020, prior to promulgation of a decision in the appeal, the Veteran requested withdrawal of the issue of an increased rating for erectile dysfunction. 2. In an unappealed decision, dated February 2008, the AOJ denied the claim of entitlement to service connection for HTN. 3. Evidence associated with the claims file after the February 2008 rating decision is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim on appeal. 4. Resolving reasonable doubt in the Veteran's favor, his OSA was caused by his service-connected DJD of the cervical spine. 5. Resolving reasonable doubt in the Veteran's favor, his HTN is caused or aggravated by OSA. 6. For the period on appeal, the Veteran's cervical spine disability did not manifest with forward flexion of 15 degrees or less and did not manifest with favorable ankylosis of the entire cervical spine. 7. Prior to October 12, 2015, the Veteran's lumbar spine disability manifested with forward flexion to 75 degrees and extension to 25 degrees, with objective evidence of pain on motion. 8. Prior to April 13, 2017, the Veteran's lumbar spine disability manifested with forward flexion to 50 degrees, extension to 25 degrees, with objective evidence of pain on motion. 9. From April 13, 2017, the Veteran's lumbar spine manifested with forward flexion to 20 degrees, extension to 20 degrees, with objective evidence of pain on motion and weight bearing. 10. The Veteran's BUE radiculopathy manifested with moderate incomplete paralysis. 11. The Veteran's BLE radiculopathy manifested with moderately severe incomplete paralysis. 12. The Veteran's RUE and RLE radiculopathy manifested more than one-year prior to the increased rating claim of May 8, 2014. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a compensable evaluation for service-connected erectile dysfunction (ED) by the appellant have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). 2. The February 2008 rating decision that denied entitlement to service connection for hypertension was final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 19.52, 20.1103 (2019). 3. New and material evidence has been received since the February 2008 rating decision, thus the claim seeking service connection for HTN is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 4. The criteria for service connection for OSA as secondary to the cervical spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). 5. The criteria for service connection for HTN as secondary to OSA and/or the cervical spine disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.309, 3.310 (2019). 6. The criteria for a rating in excess of 20 percent for DJD of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243 (2019). 7. The criteria for a rating in excess of 10 percent prior to October 12, 2015, a rating in excess of 20 percent prior to April 13, 2017, and in excess of 40 percent thereafter for lumbar degenerative disc disease (DDD) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242 (2019). 8. The criteria for a disability rating of 40 percent disabling, but no higher, for RUE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8512 (2019). 9. The criteria for a disability rating of 30 percent disabling, but no higher, for LUE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8512 (2019). 10. The criteria for a disability rating of 40 percent disabling, but no higher, for BLE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520 (2019). 11. The criteria for an effective date prior to May 8, 2014, for the grant of service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. § 3.400 (2019). 12. The criteria for an effective date prior to May 8, 2014, for the grant of service connection for radiculopathy of the right upper extremity have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. § 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty U.S. Army from June 1972 to June 1996. This case comes before the Board on appeal of a June 2015 rating decision. In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via live video conference. A transcript of the proceeding has been associated with the record. 1. Entitlement to a compensable evaluation for service-connected erectile dysfunction (ED) The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn the issue of a compensable rating for service-connected ED, hence, there remain no allegations of errors of fact or law for appellate consideration. The Veteran withdrew the issue during the February 2020 Board hearing before the undersigned VLJ. The hearing transcript shows his withdrawal of the issue was explicit, unambiguous, and done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Accordingly, the Board does not have jurisdiction to review the issue and it is dismissed. New and Material Evidence Generally, a claim that has been denied in a final unappealed RO decision may not be reopened and readjudicated. 38 U.S.C. § 7105(c) (2012). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim, which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. "New and material evidence" can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension (HTN) At the outset, the February 2008 rating decision, which among other issues, denied the Veteran's claim of service connection for hypertension was final. The Veteran was provided a notification of the rating decision in February 2008, but he failed to file a timely notice of disagreement (NOD). Thus, he did not appeal the rating decision and it became final. At the time of the February 2008 rating decision, the evidence of record consisted the Veteran's service treatment records (STRs), VA treatment records, private treatment records, a VA examination from November 2007, and the Veteran's lay statements. In the rating decision, the AOJ explained a review of the STRs was negative regarding hypertension. The AOJ added that the Veteran was not treated for hypertension until around July 2003 at a VA medical center. As such, the AOJ concluded there was no evidence that the condition was incurred in or otherwise caused by service. However, since the February 2008 rating decision, evidence has been received which raises a reasonable possibility of substantiating the claim on appeal. Specifically, in a May 2018 private medical opinion, Dr. M.F. explained that the Veteran's HTN is directly linked and associated with his OSA and his service-connected cervical spine disorder. He explained that in medical literature it is known that cervical spine disorders, is one cause of airway obstruction which causes OSA and sleep apnea increases the risk for HTN. Moreover, in a March 2018 VA medical opinion, the physician K.R. opined that the Veteran's HTN was less likely than not proximately due to or the result of the Veteran's service-connected disabilities. However, Dr. K.R. did not provide an opinion on aggravation as warranted under secondary service connection. Thus, the opinion was inadequate. As discussed above, evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Based on the foregoing, the evidence associated with the record following February 2008, is new, as it was not before the AOJ in February 2008. Likewise, the evidence is material, as it raises a reasonable possibility of substantiating the claim on appeal. Accordingly, as the evidence received following the February 2008 rating decision is new and material, the Veteran's claim of service connection for HTN is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted through the application of statutory presumptions for chronic conditions, which includes hypertension. See 38 C.F.R. §§ 3.303 (b), 3.309 (a) (2019); see also 38 U.S.C. §§ 1112, 1137 (2012). First, a claimant may benefit from a presumption of service connection where a chronic disease has been shown during service. 38 C.F.R. § 3.303 (b). In the alternative, if a chronic disease was not shown in service, but manifested to a degree of 10 percent or more within some specified time after separation from active service, such disease shall be presumed to have been incurred or aggravated in service, even if there is no evidence of such disease during service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. § 3.307 (a)(3) (2019). The application of these presumptions operates to satisfy the "in-service incurrence or aggravation" element and establish a nexus between service and a present disability, which must be found before entitlement to service connection can be granted. Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303 (b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (2019). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Likewise, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012). 3. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected cervical spine disability Here, the Veteran contends that his OSA was caused or incurred in service and/or secondary to his cervical spine disability. Based on the evidence, the Board finds that his OSA is secondary to his service-connected cervical spine disability. At the outset, the Veteran has a current diagnosis of severe obstructive sleep apnea. See March 2018 VA examination. Thus, the first element of secondary service connection is met. Likewise, the second element of secondary service connection is met, as the Veteran is service-connected for DJD of the cervical spine. Therefore, to warrant service connection, there must be evidence that the Veteran's cervical spine disability caused or aggravates his OSA. In that regard, in an October 2015 private opinion, Dr. M.F. opined that it was more likely than not that the Veteran's diagnosis for severe OSA and resulting HTN are more than likely, all directly linked and associated to his service-connected cervical spine disorder. Dr. M.F. reasoned that in medical literature, it is known that cervical spine disorders, is one cause of airway obstruction that causes OSA and that the sleep apnea increases the risk for HTN. He continued that studies which includes research from Johns Hopkins School of Public Health confirmed people with more than 30 pauses per hour of sleep, are considered to have, severe sleep apnea. The Veteran's sleep study revealed severe sleep apnea, with more than 41 pauses per hour. Dr. M.F. added that in his personal experience and in medical literature, it is known that patients with cervical spine pathologies, such as osteochondromas, osteophytes, and rheumatoid arthritic lesions can cause sleep apnea. He explained that occipital-cervical alignment may also be a factor in sleep apnea. Conversely, in the March 2018 VA medical opinion, Dr. K.R. opined that the Veteran's sleep apnea was not caused or incurred in service or proximately due to or the result of the his service-connected condition. Dr. K.R. reasoned that the Veteran was diagnosed with sleep apnea in 2006. Service treatment records did not indicate diagnosis of sleep apnea during active military service and hence the condition is less likely than not related to or incurred during military service. Dr. K.R. continued that there was no etiological relationship between sleep apnea and back condition/cervical spine condition/bilateral upper extremity radiculopathy and hence it is less likely than not related to or the result of the Veteran's service-connected disabilities. The Board finds the opinion of Dr. M.F. to be competent, credible, and highly probative. Dr. M.F. treated the Veteran, reviewed the pertinent medical evidence, accounted for the Veteran's lay assertions, then provided an opinion based on the evidence and medical literature. Conversely, the opinion of Dr. K.R. is of little probative value, as she failed to account for the Veteran's lay assertions regarding his symptoms of sleep apnea and did not consider the impact of the Veteran's cervical spine condition on his OSA. In the March 2018 VA examination, the Veteran reported that he experienced symptoms of restless sleep, loud snoring, daytime sleepiness nad drowsiness in 1997, within a year of discharge from service. Yet, Dr. K.R.'s opinion noted that the Veteran was diagnosed in 2006 and treatment records did not indicate a diagnosis of sleep apnea during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion is inadequate where the examiner fails to properly account for competent lay evidence). Given the foregoing, the Board finds that the most probative evidence supports that the Veteran's cervical spine condition caused his OSA. Accordingly, resolving all reasonable in the Veteran's favor, service connection for OSA is granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). 4. Entitlement to service connection for hypertension (HTN), to include as secondary to OSA Here, the Veteran contends that his HTN was caused or incurred in service and/or secondary to his OSA. Based on the evidence, the Board agrees. At the outset, the Veteran has a current diagnosis of hypertension. See March 2018 VA examination. During the March 2018 examination, the Veteran reported that he was found to have elevated blood pressure in 1992 but did not start meds initially. He stated that he was started on medication in 1996, which has controlled his blood pressure. Thus, the first element of service connection is met. Additionally, the second element of secondary service connection is met. As decided herein, the Veteran is service-connected for severe obstructive sleep apnea. As discussed above, to warrant service connection, there must be evidence that the Veteran's HTN was caused or aggravated by his OSA. In that regard, in the May 2018 private medical opinion, Dr. M.F. opined that it is more likely than not that the Veteran's diagnosis of severe OSA and resulting HTN are highly, more than likely, all directly linked, and associated to his service-connected cervical spine disorder. Dr. M.F. explained that OSA increases the risk for high blood pressure (HTN). He added that upper chiropractic focuses on the C1 and C2 vertebrae. Studies have shown that the C1 vertebrae in particular can have an effect on blood pressure when it is misaligned. He explained that because of its location at the brain stem, the C1 only has to move about half a millimeter to start pinching the base of the brain and caused blood pressure to elevate. Furthermore, two medical studies submitted by the Veteran, showed that OSA is a significant contributor to elevated blood pressure. One study noted that OSA is highly relevant to patients with HTN, as these two conditions frequently coexist. Adding that recent evidence supports the notion that OSA represents the most prevalent secondary contributor to elevated blood pressure in patients with resistant HTN. See OSA and HTN an Update. Likewise, the other study's abstract noted that studies from the last two decades have provided strong evidence for a causal role of OSA in the development of systemic hypertension. The acute physiological changes that occur during apnea promote nocturnal hypertension and may lead to the development of sustained daytime HTN via the pathways of sympathetic activation, inflammation, oxidative stress, and endothelial dysfunction. See Hypertension and OSA by C.P. and D.M.O. In the March 2018 VA medical opinion, Dr. K.R. opined that the Veteran's HTN was less likely than not proximately due to or the result of the Veteran's service-connected condition. She reasoned that there was no etiological relationship between HTN and the Veteran's back or cervical condition and hence it was less likely than not related to or the result of his conditions. The Board notes that Dr. K.R. did not opine on whether the Veteran's HTN was caused or aggravated by his OSA, as he was not service-connected for OSA at the time of the opinion. Additionally, the Dr. K.R. did not provide an aggravation opinion as warranted under secondary service connection. See 38 C.F.R. § 3.310. The Board finds the combined evidence of the medical opinion from Dr. M.F. as well as the studies submitted, to be competent, credible, and highly probative. Although Dr. M.F. opinion focused on the relationship of the Veteran's HTN and his cervical spine disorder, he explained that the Veteran's OSA resulted in his HTN, which is supported by the medical studies submitted by the Veteran. Accordingly, resolving all reasonable in the Veteran's favor, service connection for HTN is granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). As in the instant case, separate ratings for distinct periods of time, based on the facts may be for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2019). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. 5. Entitlement to a rating in excess of 20 percent for degenerative joint disease (DJD) of the cervical spine Here, the Veteran contends that his cervical spine DJD warrants a rating in excess of 20 percent disabling. Based on the evidence, the Board disagrees. At the outset, the Veteran's cervical spine DJD is rated at 20 percent disabling, under DC 5243. The General Rating Formula DCs 5235-5243 provides for the rating of disabilities of the spine mostly based on limitation of motion. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching around the spine affected by residuals of injury or disease, the relevant parts of the formula for the cervical spine are as follows: A 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion (ROM) of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Additionally, DC 5243 provides the Formula for Rating Intervertebral Disc Syndrome (IVDS). A 20 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. IVDS is evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243 (2019). Note (1) of 38 C.F.R. § 4.71a, DC 5243 states that an "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. 38C.F.R. §4.71a. When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)"; DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." Thus, the changes do not impact the general rating formula and evaluation of the disability under the pre- and post-February 7, 2021 regulations is not required. In private treatment records from September 2013 to August 2014, the Veteran presented with constant neck pain that radiated into his bilateral shoulders. The Board notes that Veteran had range of motion (ROM) testing in September 2013 and January 2014; however, it is unclear whether a goniometer was used and the numbers elicited do not correspond to normal degrees of flexion/extension/lateral flexion and rotation for the cervical or lumbar spine. In the April 2015 VA examination, the Veteran was shown to have cervical and lumbar degenerative disc disease (DDD) and bilateral upper extremity radiculopathy. The Veteran reported flare-ups that impacted his ability to move his head due to pain in his neck. On examination, the Veteran's cervical manifested with forward flexion to 35 degrees, extension from 0 to 35 degrees, right/left lateral flexion to 35 degrees, and right/left lateral rotation to 70 degrees, with objective evidence of pain in all motions. The Veteran was able to perform repetitive use testing without any additional limitation of motion. However, he experienced pain on movement as a contributing factor of his functional loss. There was no localized tenderness or pain on palpation. Likewise, there was no guarding or muscle spasm of the cervical spine. Muscle strength testing and deep tendon reflexes (DTRs) were normal. Sensory examination showed decreased sensation to light touch in the right forearm and in the bilateral hands/fingers. Likewise, there was evidence of moderate paresthesias and numbness of the bilateral upper extremities. The radiculopathy was indicated to be moderate. There were no other neurologic abnormalities. The examiner indicated that the Veteran had IVDS of the cervical spine but did not have any incapacitating episodes over the past 12 months due to IVDS. There were no scars or other pertinent findings, complications, conditions, signs and/or symptoms. The examiner remarked that the Veteran's posture and gait were within normal limits. There were contributing factors of pain, weakness, fatigability, and/or incoordination, as well as additional limitation of functional ability of the cervical spine during flare-ups or repeated use over time. The examiner estimated that the Veteran would loss an additional 5 degrees of flexion and extension due to pain during a flare-up. In a March 2017 VA treatment record, the Veteran complained of neck pain and was assessed with cervical spondylosis with C3-4 radiculopathy but no spinal cord compression. In a March 2019 record, the Veteran presented with cervicalgia and left shoulder pain. He demonstrated decreased and painful cervical active ROM, hypomobility of thoracic and cervical spine, and poor neck flexor endurance due to forward head posture. The Veteran's cervical spine manifested with forward flexion to 25 degrees, extension to 0 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 30 degrees. The Veteran felt the most pain with cervical extension. The Board notes during the February 2020 hearing, the Veteran testified that his back and neck have stayed about the same since the last VA examination. As no increase in the disability has been reported a current examination is not warranted. Therefore, for the period on appeal, the Veteran's cervical spine disability most closely approximated a 20 percent disability rating. The Veteran's cervical spine manifested with forward flexion to 25 degrees at its lowest. However, a higher rating is not warranted as the Veteran's cervical spine did not manifest with forward flexion to 15 degrees or less; or, favorable ankylosis of the entire cervical spine, or unfavorable ankylosis of the entire spine. The Board notes that a higher evaluation is warranted for the Veteran's BUE radiculopathy. Currently, the Veteran is rated at 20 percent disabling bilaterally from May 2014. However, the April 2015 examination showed that the Veteran had moderate paresthesias and numbness bilaterally. The examiner indicated the severity of the radiculopathy to be moderate bilaterally. Furthermore, in the December 2016 VA examination, the Veteran had symptoms of severe pain, paresthesias and numbness of the BUE. Yet, sensory examination and DTRs were normal for the bilateral upper extremities. Muscle strength showed some reduced strength in wrist flexion/extension and grip. The examiner did not indicate the level of severity of the BUE radiculopathy. However, given the foregoing the Board finds that for the period on appeal, the Veteran's BUE radiculopathy manifested with moderate incomplete paralysis. 38 C.F.R. § 4.3, 4.7, 4.124a, DC 8512. Accordingly, as the preponderance of the evidence is against the claim, a rating in excess of 20 percent disabling for cervical spine DDD is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). 6. Entitlement to a rating in excess of 10 percent prior to October 12, 2015, a rating in excess of 20 percent prior to April 13, 2017, and in excess of 40 percent thereafter for lumbar degenerative disc disease (DDD) Here, the Veteran contends that his lumbar spine disability warranted a higher rating for the periods on appeal. Based on the evidence, the Board disagrees. At the outset, the Veteran's lumbar spine was rated at 10 percent disabling prior to October 12, 2014, rating of 20 percent prior to April 13, 2017, and a rating of 40 percent thereafter, under DC 5242. The General Rating Formula DCs 5235-5243 provides for the rating of disabilities of the spine mostly based on limitation of motion. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching around the spine affected by residuals of injury or disease, the relevant parts of the formula for the lumbar spine are as follows: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the 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 such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. The regulations also provide for separate ratings for chronic orthopedic and neurological manifestations. In private treatment records from September 2013 to August 2014, the Veteran presented with a dull ache of his low back with left-sided pain. As discussed above, the accuracy of the ROM testing during this period is unclear. In an April 2015 VA examination, the Veteran was shown to have lumbar DDD with bilateral radiculopathy. The Veteran reported prolonged sharp pain in his lower back with pain radiating down the back side of both legs. The Veteran reported flare-ups described as numbness in genital area, problem sleeping, lower back pain, low sex drive, fatigue, and bad headaches. On examination, the Veteran's lumbar spine manifested with forward flexion to 75 degrees, extension to 25 degrees, right/left lateral flexion to 25 degrees, right/left lateral rotation to 25, with objective evidence of pain in all motions. The Veteran was able to perform repetitive use testing but had additional loss of ROM. He experienced pain on movement as a contributing factor of his functional loss. There was no evidence of localized tenderness or pain to palpation. Likewise, there was no evidence of guarding or muscle spasm of the lumbar spine. Muscle strength testing and deep tendon reflexes (DTRs) were normal. Sensory examination showed decreased sensation to light touch in the lower legs, ankles, feet, and toes. Straight leg raising (SLR) test was negative bilaterally. There was evidence of moderate paresthesias and numbness of the bilateral lower extremities. The radiculopathy was indicated to be moderate. There were no other neurologic abnormalities. The examiner indicated that the Veteran had IVDS of the lumbar spine but did not have any incapacitating episodes over the past 12 months due to IVDS. The Veteran reported the occasional use a back brace. There were no scars or other pertinent findings, complications, conditions, signs and/or symptoms. The examiner remarked that the Veteran's posture and gait were within normal limits. There were contributing factors of pain, weakness, fatigability, and/or incoordination, as well as additional limitation of functional ability of the lumbar spine during flare-ups or repeated use over time. The examiner estimated that the Veteran would loss an additional 5 degrees of flexion and extension due to pain during a flare-up. In the October 2015 VA examination, the Veteran had diagnoses of lumbar DDD with bilateral sciatica. The Veteran reported flare-ups described as worsening pain, weakness, and stiffness. He had functional limitation due to chronic pain, weakness, and stiffness. On examination, the Veteran's lumbar spine manifested with forward flexion to 50 degrees, extension to 25 degrees, right/left lateral flexion to 30 degrees, right/left lateral rotation to 30, with objective evidence of pain in all motions. The Veteran described his functional loss as difficulty with running, prolonged standing and walking, heavy weightlifting, and carrying. The Veteran was able to perform repetitive use testing but had additional loss of 5 degrees of flexion. He experienced pain, fatigue, and weakness as contributing factors of his functional loss. There was evidence of pain with weight bearing and moderate tenderness of the joint or soft tissue of the lumbar spine. Likewise, there was evidence of localized tenderness, but it did not result in abnormal gait or abnormal spinal contour. The examination was conducted during a flare-up. His flexion was limited to 45 degrees, but all other ROMs remained the same. The examiner explained that pain, weakness, and fatigue were factors that caused functional loss. The examiner added that the Veteran has less movement than normal, weakened movement, disturbance of locomotion and interference with standing. Muscle strength testing and deep tendon reflexes (DTRs) were normal. Sensory examination was normal bilaterally. However, straight leg raising (SLR) test was positive bilaterally. There was evidence of severe constant pain, intermittent pain, paresthesias and numbness of the bilateral lower extremities. The radiculopathy was indicated to be severe. There was no evidence of ankylosis of the spine. There were no other neurologic abnormalities. The examiner indicated that the Veteran had IVDS of the lumbar spine but did not have any incapacitating episodes over the past 12 months due to IVDS. The Veteran reported the regular use a back brace. There were no scars or other pertinent findings, complications, conditions, signs and/or symptoms. In the April 2017 VA examination, the Veteran reported that since his last examination, he had more back pain and severe spasms. He explained that when he changes position his back "locks up." His low back pain radiated down to both ankles. He added that back pain awakes him every night. He reported no significant relief. The Veteran did not report any flare-ups, but there was functional loss/impairment described as limited flexion, must change positions every 15 minutes, and avoids heavy lifting and bending. On examination, the Veteran's lumbar spine manifested with forward flexion to 20 degrees, extension to 15 degrees, right/left lateral flexion to 20 degrees, right/left lateral rotation to 5 degrees, with objective evidence of pain in all motions. The Veteran was able to perform repetitive use testing without additional loss of ROM. There was evidence of pain with weight bearing and moderate tenderness of the joint or soft tissue of the lumbar spine. Likewise, there was evidence of muscle spasms and guarding, but it did not result in abnormal gait or abnormal spinal contour. Muscle strength testing and deep tendon reflexes (DTRs) were normal. No evidence of muscle atrophy. Sensory examination was normal. Straight leg raising (SLR) test was negative bilaterally. There was evidence of severe RLE intermittent pain, moderate LLE intermittent pain, severe RLE paresthesias, moderate LLE paresthesias, and severe RLE numbness and moderate LLE numbness. The examiner indicated that the Veteran had severe RLE and moderate LLE radiculopathy. There was no evidence of ankylosis. Likewise, there were no other neurologic abnormalities. The examiner indicated that the Veteran had IVDS of the lumbar spine and reported missing 8 days from work due to IVDS. The Veteran reported the constant use a back brace. There were no scars or other pertinent findings, complications, conditions, signs and/or symptoms. In the August 2018 VA examination, the Veteran was shown to have degenerative arthritis of the spine and IVDS. The Veteran reported low back pain had worsened since last examination. He reported constant burning pain in left lower back that fluctuated in severity. Pain worsened when standing up after sitting for a period of time, also after standing for some time more pain in the back and legs worse on left side. The Veteran reported pain is worse when sleeping on his sides at night, also increased with any physical activity. The Veteran did not specify any flare-ups. As to the lower extremity, the Veteran reported pain in legs, burning sensation in front of legs, back of knees, and feet become numb at night. He reported constant shooting pain in lower extremities, pain intensity is 8 on scale of 1-10, worse in left lower extremity. He had tingling nad numbness in legs and feet intermittently throughout the day. The Veteran was unable to undergo ROM testing due to concern of aggravating pain. The examiner indicated that all ROM would be limited by pain. The examiner added that there was objective evidence of lumbar paraspinal muscle tenderness on superficial palpation likely secondary to the diagnosed condition. The Veteran did not agree for ROM/repetitive use testing. There was evidence of muscle spasms that did not result in abnormal gait or abnormal spinal contour. The Veteran had full muscle strength and no evidence of atrophy. DTRs were normal bilaterally, but sensory examination revealed decreased sensation in the foot/toes bilaterally. SLR test was negative bilaterally. The Veteran's BLE manifested with severe paresthesias and/or dysesthesias and moderate numbness. The examiner indicated that the Veteran had moderate radiculopathy bilaterally. There was no evidence of ankylosis. Likewise, there were no other neurologic abnormalities. The examiner indicated that the Veteran had IVDS of the lumbar spine but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician. The Veteran reported regular use a back brace. There were no scars or other pertinent findings, complications, conditions, signs and/or symptoms. Based on the foregoing, the Veteran's lumbar spine disability did not warrant a higher rating for the periods on appeal. Specifically, prior to October 12, 2015, the Veteran's lumbar spine manifested with forward flexion to 75 degrees, extension to 25 degrees, right/left lateral flexion to 25 degrees, right/left lateral rotation to 25, with objective evidence of pain in all motions. Then, prior to April 13, 2017, the Veteran's lumbar spine manifested with forward flexion to 50 degrees, extension to 25 degrees, right/left lateral flexion to 30 degrees, right/left lateral rotation to 30, with objective evidence of pain in all motions. Lastly, from April 13, 2017, the Veteran's lumbar spine manifested with forward flexion to 20 degrees, extension to 15 degrees, right/left lateral flexion to 20 degrees, right/left lateral rotation to 5 degrees, with objective evidence of pain in all motions. However, a higher evaluation is not warranted for those periods, as it was not shown that the Veteran's lumbar spine closely approximated the next higher rating. Accordingly, as the preponderance of the evidence is against the claim, a higher rating for the Veteran's lumbar spine is not warranted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). Conversely, the Board notes that a higher evaluation is warranted for the Veteran's BLE radiculopathy. The April 2015 examination showed that the Veteran had moderate paresthesias and numbness bilaterally. The examiner indicated the severity of the radiculopathy to be moderate bilaterally. Then, in the October 2015 VA examination, the Veteran's BLE manifested with severe constant pain, severe intermittent pain, severe paresthesias/dysesthesias, and severe numbness. The examiner indicated that the severity of the BLE radiculopathy was severe. Furthermore, in the December 2016 VA examination, the Veteran had symptoms of severe pain, paresthesias and numbness of the BLE. Yet, the examiner indicated that there was mild incomplete paralysis of the RLE and normal for the LLE. As discussed above, in the April 2017 examination, there was evidence of severe RLE intermittent pain, moderate LLE intermittent pain, severe RLE paresthesias, moderate LLE paresthesias, and severe RLE numbness and moderate LLE numbness. The examiner indicated that the Veteran had severe RLE and moderate LLE radiculopathy. Lastly, in the August 2018 examination, the Veteran reported pain in legs, burning sensation in front of legs, back of knees, and feet become numb at night. He reported constant shooting pain in lower extremities, pain intensity is 8 on scale of 1-10, worse in left lower extremity. He had tingling nad numbness in legs and feet intermittently throughout the day. On examination, the Veteran's BLE manifested with severe paresthesias and/or dysesthesias and moderate numbness. The examiner indicated that the Veteran had moderate radiculopathy bilaterally. Given the foregoing, the Board finds that for the period on appeal, the Veteran's BLE radiculopathy manifested with moderately severe incomplete paralysis. 38 C.F.R. § 4.3, 4.7, 4.124a, DC 8520. Effective Date Claims Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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); 38 C.F.R. § 3.400 (2019). 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. 38 U.S.C. § 5110 (b) (2). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400 (o) (2); see also Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant's file which demonstrates that an increase in disability was "ascertainable" up to one year prior to the claimant's submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues). Thus, in fixing an effective date for an award of increased compensation, VA must make two essential determinations. It must determine when a claim for increased compensation was received, and when a factually ascertainable increase in disability occurred. Effective on March 24, 2015, VA amended its regulations, effectively eliminating informal claims and requiring a "complete claim" on a form proscribed by the Secretary. See 38 C.F.R. §§ 3.155, 3.160 (2019). However, prior to March 24, 2015, which is the relevant period in this appeal, "any communication or action indicating an intent to apply for one or more benefits under the laws administered by [VA]... may be considered an informal claim. Such informal claim must identify the benefit sought." 38 C.F.R. § 3.155 (a) (2014). The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Likewise, the effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. See Lalonde v. West, 12 Vet. App. 377 (1999). Nevertheless, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377, 382-383 (1999). 7. Entitlement to an earlier effective date prior to May 8, 2014, for the grant of service connection with an evaluation of 10 percent for right upper extremity (RUE) radiculopathy 8. Entitlement to an earlier effective date prior to May 8, 2014, for the grant of service connection with an evaluation of 10 percent for right lower extremity (RLE) radiculopathy Here, the Veteran contends that he is entitled to an earlier effective date for the grant of service connection for his RUE/RLE radiculopathy. Based on the evidence, the Board agrees. At the outset, the Veteran was service-connected for RLE and RUE at 10 and 20 percent disabling, respectively, effective May 8, 2014. A review the claims file showed that service connection for radiculopathy of the RLE/RUE was granted as secondary to the Veteran's cervical and lumbar spine disability during the course of the claim for an increased rating for his disabilities, which was received by the AOJ on May 8, 2014. Thus, the award of service connection for the RLE/RUE radiculopathy is viewed as a component of the Veteran's May 8, 2014 claim for an increased rating for his lumbar and cervical spine. See May 2014 VA 21-526b,Veteran Supplemental Claim. Accordingly, an effective date as early as May 8, 2013, is assignable if it is factually ascertainable that the radiculopathies secondary to the back and neck were incurred in the one-year period prior to May 8, 2014. 38 C.F.R. § 3.400 (o)(2). However, if the evidence shows that the increase occurred earlier than one year prior to the date of the claim, then the effective date is no earlier than the date of the claim. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Here, the AOJ awarded an effective date of May 8, 2014, for the Veteran's RUE/RLE radiculopathy. The AOJ assigned that date based on the date of the Veteran's claim. However, the Board finds that the evidence indicates that the Veteran had RUE/RLE radiculopathy at the time he filed his May 2014 increased rating claim. VA treatment records from January and March 2005, showed that the Veteran presented with right leg pain and numbness in the past with intermittent numbness of both hands. The assessment was possible right-sided lumbar radiculopathy. Similarly, in another VA treatment record from January 2005, the Veteran reported numbness and pins and needles feeling for his RLE, as well as complaints of feeling pins and needles on his right hand upon awakening. The right hand was normal on examination. The assessment was a previous history of nocturnal hand paresthesias that suggested mild bilateral carpal tunnel syndrome. In light of the foregoing, the Board finds that that Veteran had cervical and lumbar radiculopathy at the time he filed his claim for an increased rating in May 2014. Accordingly, the Board finds that an effective date of May 8, 2014, the date VA received his increased rating claim, is warranted for the grant of service connection for his RLE/RUE radiculopathy. However, the Board finds that an effective date earlier than May 8, 2014, is not warranted. There is no indication of any pending or unadjudicated formal or informal claim for lumbar/cervical radiculopathy prior to the May 2014 increased rating claim for his lumbar and cervical spine disabilities. Nor is there evidence of an unadjudicated or pending claim for increased rating for the Veteran's lumbar/cervical spine condition. Additionally, the evidence of record does not contain factually ascertainable evidence demonstrating that the Veteran's RUE/RLE was incurred during the one-year period prior to May 8, 2014. Rather, the evidence indicates that the RLE/RUE radiculopathy may have developed as early as 2005. To the extent that the Veteran has contended that he should receive an effective date back prior to May 8, 2014 because that is the date entitlement arose, the Board does not agree. As explained above, the regulations provide that the effective date shall be the date of claim or the date entitlement arose, whichever is later. Thus, even assuming the Veteran had radiculopathy as early as 2005, the date of his May 8, 2014 claim is the proper effective date as it is the later of the two. Accordingly, as the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application and the claims must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umo, 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.