Citation Nr: 22016891
Decision Date: 03/23/22	Archive Date: 03/23/22

DOCKET NO. 17-22 345A
DATE: March 23, 2022

ORDER

The appeal with respect to the claim of entitlement to an effective date prior to July 9, 2010, for the assignment of a 10 percent rating for low back disorder is dismissed. 

Entitlement to an effective date of February 4, 2016, but no earlier, for the grant of service connection for radiculopathy of the left lower extremity is granted. 

Entitlement to an effective date of February 4, 2016, but no earlier, for the grant of service connection for radiculopathy of the right lower extremity is granted. 

Entitlement to an evaluation in excess of 10 percent prior to January 2, 2020, and in excess of 20 percent thereafter for low back disorder is denied. 

Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity is denied. 

Entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the right lower extremity is denied. 

REMANDED

The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 24, 2014, on an extraschedular basis, is remanded.

FINDINGS OF FACT

1.  In a November 2011 rating decision, the Veteran was assigned a 10 percent evaluation for his service-connected low back disorder with effective date of July 9, 2010. The Veteran was notified of this decision in November 2011. 

2.  The Veteran did not timely appeal the effective date assigned in the November 2011 rating decision.

3.  The Veteran's symptoms of radiculopathy of the bilateral lower extremities are not distinguishable from those of low back disability. 

4.  The evidence is evenly balanced as to whether the date of claim for the Veteran's service connection for radiculopathy of the bilateral lower extremities, as secondary to service-connected low back disorder is the date of claim for an increased evaluation for his service-connected low back disorder. 

5.  Prior to January 2, 2020, the Veteran's low back disorder did not manifest, at worst, in limited range of motion worse than 60 degrees. 

6.  Since January 2, 2020, the Veteran's low back disorder manifested in flexion limited to 35 degrees, but not worse. 

7.  During the entire appeal period, the Veteran's radiculopathy of the left lower extremity did not manifest in symptoms worse than moderate and wholly sensory. 

8.  During the entire appeal period, the Veteran's radiculopathy of the right lower extremity did not manifest in symptoms worse than moderate and wholly sensory.

CONCLUSIONS OF LAW

1.  The Veteran's claim regarding entitlement to an effective date earlier than July 9, 2010, for the assignment of a 10 percent evaluation for low back disorder is a freestanding claim. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103; Rudd v. Nicholson, 20 Vet. App. 296 (2006).

2.  With resolution of reasonable doubt in favor of the Veteran, the criteria for an effective date of February 4, 2016, for the grant of service connection for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400.

3.  With resolution of reasonable doubt in favor of the Veteran, the criteria for an effective date of February 4, 2016, for the grant of service connection for radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400.

4.  Prior to January 2, 2020, the criteria for entitlement to a rating in excess of 10 percent for low back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.71, Diagnostic Codes (DC) 5237, 5243.

5.  From January 2, 2020, the criteria for entitlement to a rating in excess of 20 percent for low back disability are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.71, DCs 5237, 5243.

6.  The criteria for an initial rating in excess of 20 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, DC 8520.

7.  The criteria for an initial rating in excess of 20 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, DC 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1981 to November 1984. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO)'s rating decision issued in April 2016. 

The Board previously remanded the issue for further development in May 2019 and September 2021. The case has now been returned to the Board for appellate review.  

During the pendency of the appeal, service connection for radiculopathy of the bilateral lower extremities as secondary to service-connected low back disorder was granted with an initial rating of 20 percent, effective January 2, 2020, in an April 2020 rating decision. The same rating decision increased the rating for low back disorder to 20 percent. 

The Veteran has not expressed satisfaction with the higher rating; this issue, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). The appeal period for the increased rating claim for low back disorder runs from the claim date of February 4, 2016. The Board looks to the evidence of record one year prior to the date of claim for low back disorder. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010)

Since the evidence of record indicates that the Veteran's radiculopathy of the bilateral lower extremities are part and parcel of the underlying claim for increased rating of the low back disorder, the Board takes jurisdiction over the issues pertaining to lower extremity radiculopathy. Chavis v. McDonough, 34 Vet. App. 1 (2021). 

Lastly, Attorney J. Woods, the last prior representative of the Veteran, submitted a motion to withdraw from representation in September 2020, and the Board granted the motion in February 2021. Since then, the Veteran has not selected a new representative, and he is currently unrepresented. 

EARLIER EFFECTIVE DATE

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be 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. 

Specifically, as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o).

The United States Court of Appeals for Veterans Claims (Court) and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1), (2).

As awards of secondary service connection are not awards of increased compensation within the meaning of the statute, the effective date can be no earlier than the date of the claim for service connection on a secondary basis. Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007) (finding that the effective date for a grant of service connection for diabetes and hypertension as secondary to leukemia was the date of the claim for secondary service connection, not the date of the claim of service connection for leukemia), aff'd sub nom. Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008); Ross v. Peake, 21 Vet. App. 528, 532-33 (2008) (holding that the effective date for a grant of secondary service connection for depression with anxiety was the date of the secondary service connection claim, not the date of the claim for service connection for the primary heart condition). 

1. Effective date prior to July 9, 2010, for a 10 percent rating for low back disorder

The Veteran's claim for an effective date prior to July 9, 2010, for the assignment of a 10 percent rating for low back disorder must be dismissed for the following reason. 

The agency of original jurisdiction (AOJ) assigned a 10 percent rating for low back disorder in a November 2011 rating decision. No notice of disagreement nor new evidence was submitted within the appeal period. The November 2011 rating decision became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011). 

Once a decision on a claim becomes final, it cannot be challenged through a freestanding claim for entitlement to an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). The Board is required to dismiss freestanding claims for entitlement to earlier effective dates. Id.; see also DiCarlo v. Nicholson, 20 Vet. App. 52 (2006) (stating there is no such procedure as a freestanding challenge to the finality of a VA decision). In other words, if there is disagreement as to the effective date assigned in a given rating action, it must be timely appealed (within one year of notice of the rating decision assigning the effective date). In cases where this is not done, only a finding of clear and unmistakable error could enable an earlier effective date. See 38 U.S.C. § 5109A (b); 38 C.F.R. § 3.105 (a).

The Board notes that the Veteran submitted a notice of disagreement in December 2015 that included the issue of increased rating for low back disorder and referred to a December 2014 VA notification of the decision. However, the December 2014 rating decision referred to in the December 2015 notice of disagreement does not include adjudication of a claim for increased rating for low back disorder. This discrepancy was already noted by the AOJ in its December 2015 correspondence with the Veteran. Moreover, a notice of disagreement received outside of the appeal period of the original assignment of 10 percent for low back disorder in November 2011 does not constitute a timely notice of disagreement. 

As the current claim is a freestanding claim of entitlement to an earlier effective date, the law is dispositive of the issue, and the claim must be dismissed. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

2.  Effective date prior to January 2, 2020, for the grant of service connection for radiculopathy of the right lower extremity associated with low back disorder

3.  Effective date prior to January 2, 2020, for the grant of service connection for radiculopathy of the left lower extremity associated with low back disorder

This grant of service connection for radiculopathy of the bilateral lower extremities originates from the claim of an increased evaluation for low back disorder, received on February 4, 2016. 

In fact, a VA examination conducted on April 5, 2016, in response to the February 2016 claim, reflects a medical finding that the Veteran has symptoms of radiculopathy of sciatic nerve in both lower extremities. Moreover, this is the earliest documented finding that the Veteran has radiculopathy of bilateral lower extremities, which later were determined to be secondary to low back disability and whose symptoms could not be distinguished from those of low back disability in a January 2020 VA examination. 

With resolution of reasonable doubt in the Veteran's favor, the Board finds that the claim date for radiculopathy of bilateral lower extremities is the same for the claim date for increased rating for low back disorder. Here, the evidence of record indicates that one reason for the Veteran's February 2016 filing of an increased evaluation for low back disorder is the additional, new symptoms of numbness and tingling in the legs. The effective date of February 4, 2016, for the grant of service connection for radiculopathy of the right and left lower extremities, is warranted. An effective date prior to February 4, 2016, is not warranted, for the evidence does not indicate the Veteran filed a claim for radiculopathy prior to that date. 

INCREASED RATING

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7.

When, as here for the low back disorder, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994).

When the appeal for radiculopathy of lower extremities arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). 

For both claims, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).

In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

When evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. See Chavis, supra.

1.  Evaluation in excess of 10 percent prior to January 20, 2020 and 20 percent thereafter for low back disorder

The Veteran's low back disorder is currently rated under DC 5237. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Moreover, although an additional diagnosis for intervertebral disc syndrome (IVDS) was made during the appeal period, DC 5243 applicable to such disability was not substantively changed. 

Disabilities of the spine are rated under the General Rating Formula for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Under the General Rating Formula for Diseases and Injuries of the Spine applied by DC 5242, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 20 percent rating requires thoracolumbar spine forward flexion 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a.

The IVDS Rating Formula provides a 20 percent rating 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a , DC 5237, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a , general rating formula, Note 4. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a , general rating formula, Note 5.

A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. 

First, the evidence of record does not reflect that the Veteran has had any incapacitating episode as defined under the IVDS Rating Formula during the entire appeal period. Thus, a higher evaluation under the IVDS Rating Formula is not warranted. 

As for evaluation based on the General Rating Formula for Diseases and Injuries of the Spine, the Board finds that a marked decrease in the limitation of range of motion, particularly in flexion, did not manifest until January 2, 2020, when a VA examination that found limitation in flexion to 45 degrees, limited by pain, after repeated use over time and during flareups. Prior to this examination, the evidence indicates that the Veteran's low back disability had gotten worse over time during the appeal period as indicated by his report in a February 2015 VA treatment record that his chronic low back pain was not responding to gabapentin or naproxen as it used to. However, a February 2016 VA examination report indicates that the Veteran reported denying any range of motion or functional loss during flareups and the range of motion test showed normal ranges for all motions. 

Most recently, the Veteran underwent a VA examination in November 2021. The range of motion test reflects a finding that his flexion was limited to 35 degrees with pain during flareups. The examiner found difficulty bending and bearing weight due to the decreased range of motion and pain. 

Based on the evidence of record, the Board finds that an evaluation in excess of 10 percent is not warranted until January 2, 2020, but that thereafter, an evaluation of 20 percent, but no higher, is warranted for the low back disability. The marked decrease in flexion due to pain was first documented in the January 2020 VA examination. Moreover, there is no medical or lay evidence to support a finding that the Veteran's low back disability resulted in forward flexion 30 degrees or less or favorable ankylosis, or functional equivalent thereof, of the entire thoracolumbar spine. 

In sum, the claim for an evaluation of 20 percent, but no higher, since January 2, 2020, but not prior, for low back disorder is warranted. 

2.  Initial evaluation in excess of 20 percent for radiculopathy of the right lower extremity associated with low back disorder

3.  Initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity associated with low back disorder

The Veteran's radiculopathy of lower extremities is currently rated under DC 8520. 

Under DC 8520, a 10 percent disability rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent disability rating is warranted for moderate incomplete paralysis; a 40 percent disability rating is warranted for moderately severe incomplete paralysis; and a 60 percent disability rating is warranted for severe incomplete paralysis with marked muscle atrophy. See 38 C.F.R. § 4.124a , DC 8520. Finally, an 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Id.

Descriptive words such as "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. As explained below, the Board adopts common dictionary definitions for these terms in conjunction with the regulation text. Rather than applying a mechanical formula, the Board must evaluate all the evidence for "equitable and just decisions." See 38 C.F.R. § 4.6. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. However, when the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124 (a).

Here, an initial evaluation in excess of 20 percent for radiculopathy of bilateral lower extremities is not warranted during the entire appeal period because the involvement of the Veteran's radiculopathy is wholly sensory. An evaluation in excess of 20 percent requires symptomatology worse than moderate. 

The first diagnosis of radiculopathy of bilateral lower extremities was rendered in the February 2016 VA examination. The diagnosis was based on the examiner's finding that the Veteran had moderate constant pain, mild paresthesias and dysesthesias, and moderate numbness. The Veteran reported having numbness and tingling in the legs. He did not report any other symptoms and no other symptoms were noted in the examination. 

Similarly, the January 2020 VA examination reflects a finding of moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. Again, He did not report any other symptoms and no other symptoms were noted in the examination. 

In sum, the medical evidence of record, to include VA examinations and treatment records, does not reflect more severe symptoms of radiculopathy, other than wholly sensory symptoms. As such, the claim for an initial evaluation in excess of 20 percent for radiculopathy of the bilateral lower extremities is not warranted. 

REASONS FOR REMAND

Entitlement to an extraschedular TDIU is remanded.

In May 2019 remand, the Board already found that the evidence of record is sufficient to substantiate a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities under Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Specifically, the December 2017 private doctor opined that the Veteran's mental health and aggravating medical conditions continues with increased symptomatology and are certainly severe enough to disable and preclude the Veteran from sustaining gainful employment since at least the date of his claim October 15, 2013, uninterrupted to present time. 

In the May 2019 remand directive, the Board directed the AOJ to refer the issue of TDIU to the Director of Compensation if the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) upon the RO's assignment of disability evaluations. This directive has not been carried out to the present, even though the Veteran has not met schedular requirement at any time prior to October 24, 2014, even after rating assignment was made subsequent to the May 2019 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board's assignment of earlier effective dates for the grant of service connection of radiculopathy of the bilateral lower extremities, as found above, does not increase the combined schedular rating to meet the requirement under 38 C.F.R. § 4.16 (a). Thus, this issue must be remanded for extraschedular TDIU consideration by the Director of Compensation for the period prior to October 24, 2014. 

The matters are REMANDED for the following action:

Refer the issue of extraschedular TDIU for the period prior to October 24, 2014, to the Director of Compensation. 

 

 

Emily Tamlyn

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Y. Taylor

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.