Citation Nr: 22016829 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 18-25 628A DATE: March 23, 2022 ORDER Entitlement to an effective date of January 28, 2016, but no earlier, for the grant of service connection for left lower extremity sciatic radiculopathy is allowed, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an effective date of January 28, 2016, but no earlier, for the grant of service connection for right lower extremity sciatic radiculopathy is allowed, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a rating in excess of 10 percent for a lumbosacral strain (hereinafter "a low back disability") prior to March 22, 2018, and in excess of 20 percent thereafter is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity sciatic radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity sciatic radiculopathy is remanded. FINDING OF FACT Beginning January 28, 2016, the evidence is at least in approximate balance that the Veteran experienced bilateral lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of January 28, 2016, but no earlier, for the grant of service connection for left lower extremity sciatic radiculopathy have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an effective date of January 28, 2016, but no earlier, for the grant of service connection for right lower extremity sciatic radiculopathy have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty service from December 1978 to February 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2015 and March 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Service connection has been in effect for the Veteran's low back disability since March 1, 1999. VA received his informal claim for an increased rating on September 30, 2014 and received a fully developed claim within a year. In a July 2015 rating decision, the RO continued the 10 percent rating for the Veteran's low back disability, and he filed a timely Notice of Disagreement. In a March 2018 rating decision, the RO granted service connection for bilateral lower extremity sciatic radiculopathy and assigned a 10 percent rating for each extremity, both effective October 24, 2016. In the March 2018 rating decision, the RO also continued the 10 percent rating for the low back prior to March 22, 2018 and assigned a 20 percent rating thereafter. The Veteran filed a timely Notice of Disagreement with the ratings and effective dates for his bilateral lower extremity sciatic radiculopathy and also appealed the ratings and effective date of the 20 percent award for his low back. The Board notes that the Veteran's claim for his low back disability has been pending since September 30, 2014, the date VA received his claim, and that the Veteran's request for an earlier effective date for the 20 percent rating is subsumed by the concurrent increased rating claim. As VA will be considering whether a rating in excess of 10 percent prior to March 22, 2018, is warranted for the low back, there is no prejudice to the Veteran in not making this a separate issue on the cover page. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in October 2021. A transcript of that hearing has been associated with the claims file. Earlier Effective Date Claims Legal Criteria The effective date for the award of a service connection claim is the day following separation from active service or date entitlement arose if claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). Factual Background and Analysis By way of history, in a March 2018 rating decision, service connection was granted for left and right lower extremity sciatic radiculopathy (as secondary to a service-connected low back disability) and 10 percent ratings were assigned for each extremity effective October 24, 2016. The Veteran has disagreed with the assigned ratings and the effective dates for each assigned rating. See May 2018 Notice of Disagreement. He and his representative argue that the effective dates for the grants of service connection for the claims should date back to January 2016 and that medical records document radiculopathy at that time. See October 2021 Hearing Transcript, p. 9. The Veteran's claims for higher ratings are discussed in the remand portion below. While the Board acknowledges that the remand directives include development for VA treatment records not associated with the record, the Board may appropriately proceed with adjudication of the effective date claims for the grant of service connection, as the outstanding records in question only pertain to the increased rating claims and post-date the current effective date of October 24, 2016. Therefore, these outstanding records have no bearing on the determinations regarding whether earlier effective dates for the grant of service connection are warranted. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Medical records from Portsmouth Naval Medical Center dated January 28, 2016, reflect the Veteran complained of back pain with occasional right lower extremity radiculopathy. At the Veteran's October 2021 Hearing, the Veteran testified that the onset of his radiculopathy was in January 2016 and that although medical records only documented right lower extremity radiculopathy, it was bilateral at that time. The Board finds the Veteran is credible. The Board finds he is also competent to report symptoms he experiences through his senses, such as bilateral lower extremity radicular symptoms. Based on the foregoing, entitlement to an effective date of January 28, 2016, for the grant of service connection for right and left lower extremity sciatic radiculopathy is allowed, as the evidence demonstrates this is the date entitlement arose. Given that the Veteran has specifically requested this effective date for the grant of service connection for both lower extremities, and no earlier date, this represents a full grant of benefits with respect to these issues. REASONS FOR REMAND Increased Rating for Low Back Disability At his hearing before the Board, the Veteran indicated his low back disability had worsened since his last examination. His representative also indicated that the most recent March 2018 was not compliant with Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017) (holding that examiners must seek information from all relevant sources, including veterans' lay statements, regarding the frequency, severity, and duration of flares, precipitating and alleviating factors, and extent flares affect functional impairment). For the foregoing reasons, the claim is remanded to afford the Veteran a new examination. Increased Ratings for Bilateral Lower Extremity Sciatic Radiculopathy The RO granted service connection for bilateral lower extremity sciatic radiculopathy in a March 2018 rating decision, following a March 2018 VA spine examination which documented these disabilities. The Veteran has not been afforded a specific peripheral nerves examination to determine the current severity of these disabilities, and therefore, a remand is required. While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with record. 2. Afford the Veteran the appropriate spine examination to determine the current severity of his low back disability. The examiner must provide the following information: (a) Obtain and record in the examination report a complete description from the Veteran regarding the symptoms and functional impairment she experiences, to include the frequency, duration, characteristics, severity, and functional loss on any flare-ups. (b) Range of motion testing must be performed and include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges. If such are not applicable or unable to be performed, the examiner must provide an explanation for why this is so. (c) The examiner should note any pain, weakened movement, excess fatigability, instability of station, and lack of coordination present. The examiner must note, in terms of range of motion, the point at which there is objective evidence of pain in all spheres of testing. (d) The examiner should state whether the examination is taking place during a flare-up or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide opinions estimating any additional degrees of limited range of motion caused by functional loss during a flare-up AND after repeated use over time. Estimations should be attempted to be made based on the Veteran's description of symptoms. If rendering any opinion is not possible, the clinician must provide an adequate explanation as to why; the inability to provide an opinion may NOT be based on the fact that the Veteran was not examined on repetitive use or during a flare-up. 3. Afford the Veteran the appropriate peripheral nerves examination to determine the current severity of his bilateral lower extremity sciatica. The examiner must obtain from the Veteran, and document in the examination report, a complete description regarding the severity of symptoms. The examiner also must complete all portions of the Disability Benefits Questionnaire, including all required testing and a discussion regarding functional impairment due to these disabilities. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.