Citation Nr: 22040174 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 07-10 173 DATE: July 13, 2022 ORDER An initial rating in excess of 40 percent for a lumbar spine condition is denied. Subject to the laws and regulations governing the award of VA monetary benefits, an effective date of June 24, 1997, but no earlier, for the award of a separate rating for left lower extremity radiculopathy is granted. REMANDED Entitlement to an initial rating in excess of 20 percent prior to May 22, 2014, and 40 percent thereafter for left lower extremity radiculopathy is remanded. Entitlement to special monthly compensation (SMC) for loss of use of a creative organ is remanded. FINDINGS OF FACT 1. The Veteran's lumbar spine condition manifested in forward flexion to 30 degrees or less during flare-ups with pain, and difficulty walking, standing, and bending. Throughout the entire appeal period, the disability did not result in ankylosis or the functional equivalent thereof, nor in any episodes that required bed rest prescribed by a physician. 2. The Veteran's claim for entitlement to a separate rating for left lower extremity radiculopathy arose from a June 24, 1997, petition to reopen a claim for service connection for a low back condition. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for a service-connected lumbar spine condition have not been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. § 3.102, 3.159, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5237, 5243; 38 C.F.R. § 4.71a, DC 5295 (2002). 2. The criteria for an effective date of June 24, 1997, but no earlier, for the award of a separate rating for left lower extremity radiculopathy have been met. 38 U.S.C. § 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to September 1976. These matters come before the Board of Veterans Appeals (Board) on appeal from March 2006, April 2011, March 2016, April 2016, and May 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a complicated procedural history. A March 2006 rating decision granted service connection for the Veteran's low back strain under 38 C.F.R. § 4.71a, DC 5237, and denied service connection for lumbosacral herniated nucleus pulposus. He timely appealed the decision in May 2006 and perfected his appeal in March 2007. In an April 4, 2007, communication, the Veteran claimed service connection for bilateral lower extremity radiculopathy secondary to the service-connected low back strain. In July 2009 and January 2011, the Board remanded the claim for service connection for lumbosacral herniated nucleus pulposus for the issuance of a statement of the case (SOC). The Board also remanded the claims for service connection for right lower extremity radiculopathy; left lower extremity radiculopathy; and a rating in excess of 10 percent for lumbosacral strain as they were intertwined with the claim for service connection for lumbosacral herniated nucleus pulposus. In April 2011, the RO granted service connection for left lower extremity radiculopathy and assigned a 20 percent rating effective April 4, 2007, and increased the rating for the Veteran's lumbosacral strain to 40 percent effective May 31, 2007. In September 2012, the Board remanded the Veteran's claims for an initial rating in excess of 10 percent prior to May 31, 2007, and in excess of 40 percent thereafter for a lumbosacral strain; and an initial rating in excess of 20 percent for left lower extremity radiculopathy. In March 2016, the RO increased the rating for the Veteran's left lower extremity radiculopathy to 40 percent effective May 22, 2014. In April 2016, the RO granted service connection for lumbosacral herniated nucleus pulpous. The RO recharacterized the Veteran's service-connected low back condition as lumbosacral herniated nucleus pulpous to include myositis and low back strain (low back condition) and continued the 40 percent rating effective April 19, 2016, under 38 C.F.R. § 4.71a, DC 5243. In April 2017, the Board denied service connection for right lower extremity radiculopathy; granted an initial rating of 40 percent, but no higher, prior to May 31, 2007, for the low back condition; and denied an initial rating in excess of 20 percent for left lower extremity radiculopathy prior to May 22, 2014, and 40 percent thereafter. The Veteran timely appealed to the Court of Appeals for Veterans Claims (Court). In a February 2019 memorandum decision, the Court remanded the Board's decision that assigned an effective date of May 22, 2014, for the grant of a 40 percent rating for left lower extremity radiculopathy and failure to address the Veteran's entitlement to SMC but affirmed the other issues on appeal. In March 2019, the Veteran filed a motion for reconsideration. In November 2019, the Court stayed the proceedings, awaiting the resolution of other appeals. In August 2021, the Court granted the motion for reconsideration, withdrew its February 2019 memorandum decision, and issued another memorandum decision in August 2021. The August 2021 memorandum decision remanded the parts of the April 2017 Board decision that assigned an effective date of May 22, 2014, for the grant of a 40 percent rating left lower extremity radiculopathy; denied a rating in excess of 40 percent for a low back disability; declined to exercise jurisdiction over the issue of an earlier effective date for the assignment of a 20 percent rating for left lower extremity radiculopathy; and failed to address the Veteran's entitlement to SMC back to the Board. The prior denial of service connection for right lower extremity radiculopathy was affirmed. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 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 of 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. 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 Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). 1. An initial rating in excess of 40 percent for a lumbar spine condition is denied. Specific Legal Criteria The schedular criteria for rating spine disabilities have been amended three times during the appeal period, which began on June 24, 1997. The rating criteria pertaining to intervertebral disc syndrome (IVDS) under 38 C.F.R. § 4.71a, DC 5293, were amended effective September 23, 2002. See 67 Fed. Reg. 54, 345-54, 349 (August 22, 2002). Second, effective September 26, 2003, the rating criteria for evaluating all spine disorders were amended. See 68 Fed. Reg. 51,454-51, 458 (August 27, 2003); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). Finally, the rating criteria for the spine were most recently updated effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). The Board notes that concerning the rating criteria that went into effect on September 23, 2002, pertaining to IVDS does not apply in this case as there is no indication the Veteran was diagnosed with IVDS until May 2014. In addition, concerning the amendments pertaining to the lumbar spine that became effective February 7, 2021, the DCs did not materially change. See 85 Fed. Reg. 76453 (Nov. 30, 2020, as corrected). When, as here, the rating criteria are amended during the pendency of the appeal (review period), the Board considers both the former and revised criteria and applies whichever version is more favorable to the Veteran. However, should an increased rating be warranted under the revised criteria, the award may not be made effective before the effective date of the change unless expressly provided for in the regulation. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 7-03; VAOPGCPREC 3-00, 65 Fed. Reg. 33,422 (April 10, 2000); The pre-September 26, 2003, rating criteria are as follows: Residuals of a fracture of the vertebrae were rated pursuant to DC 5285. To this end, a 60 percent rating was warranted for a fracture of the vertebrae without cord involvement or abnormal mobility requiring neck brace, and a maximum 100 percent rating was awarded for cord involvement, bedridden, or requiring long leg braces (jury mast). 38 C.F.R. § 4.71a, DC 5285 (2002). Complete bony fixation (ankylosis) of the spine was rated pursuant to DC 5286. Complete ankylosis of the spine at a favorable angle warranted a 60 percent disability rating and complete ankylosis of the spine at an unfavorable angle, with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type) warranted a 100 percent disability rating. 38 C.F.R. § 4.71a, DC 5286 (2002). In addition, under DC 5289, a 40 percent evaluation was assigned for favorable ankylosis of the lumbar spine, and a higher 50 percent evaluation was awarded for unfavorable ankylosis of the lumbar spine. 38 C.F.R. § 4.71a, DC 5289 (2002). Lumbar spine limitation motion was rated pursuant to DC 5292. Slight limitation of motion of the lumbar segment of the spine warranted a 10 percent evaluation. Moderate limitation of motion warranted a 20 percent evaluation. Severe limitation of motion warranted a 40 percent disability evaluation. 38 C.F.R. § 4.71a, DC 5292 (2002). Under DC 5293, IVDS was rated as 10-percent disabling if mild. A 20 percent evaluation was assigned for moderate IVDS, with recurring attacks. A 40 percent evaluation contemplated severe IVDS, characterized by recurrent attacks with intermittent relief. A 60 percent evaluation was warranted for pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2002). Lumbosacral strain was rated pursuant to DC 5295. Lumbosacral strain warranted a 0 percent (or noncompensable) rating with slight subjective symptoms only. Characteristic pain on motion warranted a 10 percent rating. Muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral in a standing position warranted a 20 percent rating. A 40 percent rating was warranted for severe strain with listing of whole spine to opposite side, positive Goldthwaithe's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (2002). DC 5294 for sacro-iliac injury and weakness was rated on the same criteria. Id., DC 5294. The words "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "slight" means small of its kind or in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Although the criteria under DCs 5292 and 5295 were less defined than the current criteria and numerical ranges of motion were not provided, guidance can be obtained from the amended regulations. In adopting specific ranges of motion to define what is normal, VA stated that the ranges of motion were based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 2nd ed., (1984), which is the last edition of the Guides that measured range of motion of the spine using a goniometer. See supplementary information, 67 Fed. Reg. 56,509 (Sept. 4, 2002). In other words, even though pre-2003 regulations did not define normal range of motion for the spine, the current definition is based on medical guidelines in existence since 1984, and the Board may consider the current ranges of motion to rate spine disabilities under the old criteria. The rating criteria from September 26, 2003, are as follows: As of September 26, 2003, the General Rating Formula for Diseases and Injuries of the Spine applies to DCs 5235 to 5243. The General Rating Formula for evaluating the spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Following the rating criteria, Note (1) states: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Background and Facts In this matter, the Veteran was granted service connection for a lumbar spine condition in a March 2006 rating decision. The March 2006 rating decision assigned a 10 percent rating effective June 24, 1997. An April 26, 2011, rating decision assigned an increased rating to 40 percent effective May 31, 2007. An April 2017 rating decision assigned a 40 percent rating effective June 24, 1997. Accordingly, the Board will consider entitlement to a rating in excess of 40 percent from the June 24, 1997, date of service connection. A May 1996 Social Security Administration (SSA) Office of Hearings and Appeals decision reflects that the Veteran testified that he had constant pain in his lower back which radiated to his left leg, and was exacerbated by driving, walking, and sitting. The Veteran testified further that he cannot sit or stand for longer than 10 minutes without changing position. Private treatment records dated in April 1999 revealed chronic low back pain with chronic lumbar pain and myositis, a lumbar herniated nucleus pulposus, and lumbar radiculopathy L5-S1. However, there was no discussion of range of motion. There were no findings of ankylosis or discussion of incapacitating episodes. In an August 2001 private examination, it was noted that the Veteran was seen for complaints of lower back pain which he treated with pain medication. The Veteran was diagnosed with lumbosacral myositis, with multiple tender points. Range of motion testing revealed a forward flexion to 40 degrees, extension to 10 degrees, left lateral flexion to 8 degrees, and right lateral flexion to 6 degrees. The private physician also noted pain on motion of the spine in all directions, decreased sensation over the left foot, and atrophy of the left calf. There were no findings of ankylosis or discussion of incapacitating episodes. The Veteran was provided with a VA examination in November 2005. The examiner diagnosed the Veteran with lumbar strain and a herniated disc at L4-L5 and L5-S1. On examination he complained of pain located at the paravertebral muscles of the lumbosacral area which radiated into his left leg and stated the duration of this pain was usually two to three hours. The Veteran also reported that the pain was an intensity of a 6 on a scale of 1 to 10, and taking ibuprofen for the pain resulted in mild relief. Concerning flare ups, the Veteran reported experiencing flare ups once a week with the pain level reaching a 9 on a scale of 1 to 10. He stated that precipitating factors for flare ups included prolonged standing and sitting, and cloudy or rainy days. The examiner found that the Veteran had no additional limitation of motion due to his flare ups. Regarding assistive devices, the Veteran reported walking with a one-point cane where he was able to ambulate for 20 minutes. The Veteran denied a history of falls and reported that he was independent in self-care and activities of daily living. Range of motion testing revealed forward flexion to 40 degrees with pain in the last 10 degrees, extension to 15 degrees with pain in the last 10 degrees, left lateral flexion and right lateral flexion to 20 degrees with pain in the last 10 degrees, and left and right lateral rotation to 20 degrees with pain in the last 10 degrees. Repetitive motion produced increase in pain, but no change in loss of function weakness fatigue or incoordination was noted. The Veteran had tenderness upon palpation as well as spasms at the paravertebral muscles of the thoracolumbar spine. The examiner reported that there was no evidence of abnormal kyphosis or reversed lordosis or scoliosis. The Veteran denied any prescribed bedrest in the last year or any periods of incapacitation. A February 2006 VA opinion concerning etiology of the Veteran's lumbar spine condition states that from 1992 to 1996, the claims folder shows a history of pain, treatment, and radiological and electromyographic evidence for a herniated disc, as well as for radiculopathy at L5-S1 level in the left side. In March 2007, the Veteran sought emergency treatment for a 5-day flare-up of chronic low back pain. He stated that the pain was severe, constant, and worsened with bending or changing position. An examination of the back was unremarkable. He was given pain medication to relieve his symptoms. The Veteran underwent a VA examination in May 2007. The examiner diagnosed lumbar strain and a herniated disc at L4-L5 and L5-S1. The Veteran reported experiencing flare ups that were severe, occurred weekly, and lasted for hours. He reported that factors precipitating flare ups included prolonged walking, prolonged sitting, and lying on his right side. With regard to incapacitating episodes, the examiner noted the Veteran was seen in the emergency room because of severe back pain with symptoms suggestive of lumbar radiculopathy. The examiner noted the Veteran was able to walk more than a quarter of a mile but less than one mile. On examination, range of motion testing revealed forward flexion to 30 degrees, extension to 10 degrees, left and right lateral flexion to 10 degrees, and left and right lateral rotation to 10 degrees. The examiner noted that there was no showing of ankylosis. The Veteran denied any prescribed bedrest in the last year or any periods of incapacitation. The Veteran was provided with an additional VA examination in May 2014. The examiner diagnosed lumbar strain, a herniated disc at L4-L5 and L5-S1, and left sciatic paralysis. The Veteran reported that he experienced flare ups, in which he was "unable to do anything." Initial range of motion testing revealed forward flexion to 25 degrees, and painful motion beginning at 0 degrees. The Veteran stated he was unable to complete further range of motion testing due to pain and risk of falling. Concerning functional loss after repetitive use, the examiner reported the Veteran would experience less movement than normal, pain on movement, and interference with sitting and standing. The examiner noted the Veteran did not have ankylosis. She diagnosed him with IVDS, but stated that he had not had any incapacitating episodes over the past twelve months due to IVDS. Concerning assistive devices, he used a cane constantly and a brace regularly. Regarding other pertinent physical signs and symptoms, the examiner noted the Veteran's gait was normal and he did not place any weight on his cane. She also stated that he was able to sit without grimace or protection, and he could stand up from the chair with assistance of his arms. The examiner also noted that although the Veteran refused to cooperate for range of motion testing, the severity of his lumbar strain is moderate, and that although he reported constant pain that was an 8 on a scale of 1 to 10, his records failed to document exacerbations of back pain that required emergency room treatment. VA treatment records from the appellate period reflected that the Veteran sought treatment for low back pain, which included treatment with medication and a transcutaneous electrical nerve stimulation (TENS) unit. Analysis At the outset, the Board notes that every VA examination did not contain all information reflected in the holdings of Correia and Sharp. However, the testing results, the various examiners' determinations of additional limitations with repetitive use or during flare-ups, and the Veteran's own reports of his symptomology, provide an adequate basis upon which to determine the extent and severity of the disability. Given the totality of the information, including the Veteran's own descriptions of his limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed. DeLuca v. Brown, 8 Vet. App. at 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. Upon review of the evidence, the Board finds a rating in excess of 40 percent for the Veteran's lumbar spine condition is not warranted at any time during the appeal period. In this regard, the Veteran has been assigned the highest schedular rating for lumbosacral strain under DC 5295, as in effect prior to September 26, 2003. Prior to September 26, 2003, a rating in excess of 40 percent under other DCs required residuals of a vertebra fracture, IVDS, ankylosis of the spine, or unfavorable ankylosis of the spine; none of which has been shown by the evidence of record. In this regard, there is no evidence of any vertebra fracture, or a diagnosis of IVDS during this period. Ankylosis will be addressed further below. Similarly, under the General Rating Formula, as in effect September 26, 2003, a rating in excess of 40 percent requires evidence of ankylosis of the entire thoracolumbar spine or the entire spine, which has not been shown by the evidence of record, or of IVDS with incapacitating episodes of a total duration of at least 6 weeks in the past 12 months. Concerning ankylosis, and to address the concerns of the August 2021 memorandum decision, the Board specifically acknowledges the Court case of Chavis v. McDonough, 34 Vet. App. 1 (2021), which stated that "application of [38 C.F.R.] §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis, in other words, if it is the functional equivalent of ankylosis." In this regard, the Board acknowledges the Veteran's lay reports that due to his back condition he has difficulty standing or sitting for prolonged periods, walking long distances, twisting, and bending, and that he experiences pain of such severity he feels "he is unable to do anything" as stated at the time of the May 2014 VA examination. However, upon review, even when considering the functional limitations present during a flare-up and the functional limitations shown generally, the Board finds that the Veteran's disability picture or any additional limitation does not more nearly approximate the entire thoracolumbar spine fixed in flexion or extension and one of the additional symptoms set forth in the General Formula Note 5 or the functional equivalent of ankylosis. Although the Veteran experienced limitation of motion due to pain, there is no indication that the limitation of motion resulted in the entire spine fixed in flexion or extension, with one or more of the following: difficulty walking due to a 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; or neurologic symptoms due to nerve root stretching. While the Board has considered 38 C.F.R. § 4.40 and § 4.45, the Board finds that a higher rating in excess of 40 percent is not warranted. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. Although, the May 2014 examination report reflects that the Veteran had IVDS, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a , Formula for Rating IVDS Based on Incapacitating Episodes. Furthermore, other than the left lower extremity rating addressed below, the evidence does not show any other associated objective neurologic abnormalities. See 38 C.F.R. § 4.71a, DC 5242, Note 1. In sum, as the evidence is against the claim for a rating in excess of 40 percent, there is no reasonable doubt to be resolved, and a rating in excess of 40 percent is not warranted at any time during the appellate period. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding others claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 2. An effective date of June 24, 1997, but no earlier, for the award of a separate rating for left lower extremity radiculopathy is granted. Legal Criteria As noted above, the Veteran was service connected for left lower extremity radiculopathy secondary to his lumbar spine disability, effective April 4, 2007. Unless specifically provided otherwise, the effective date of an evaluation and grant 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. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (b)(2)(i). Prior to March 24, 2015, a "claim" was either a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). "Date of receipt" of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(b) (2014). In contrast, effective March 24, 2015, all claims must be submitted on a form prescribed by the Secretary of VA. See 38 C.F.R. § 3.155. Analysis The Veteran is seeking an effective date prior to April 4, 2007, for the award of a separate rating for left lower extremity radiculopathy. In this regard, the August 2021 memorandum decision states that the Board's statement of reasons and bases was not adequate because the Board did not address whether it had jurisdiction to review whether an effective date prior to April 4, 2007, was warranted on the basis that this issue was part of his appeal seeking a higher rating for his low back disability or was reasonably raised during the appeal the rating of his low back claim. See Chavis, 34 Vet. App. at 15 (holding that the Board had jurisdiction to consider the proper initial rating for the appellant's radiculopathy in connection with his appeal of an increased rating for his low back disability). In this case, the Veteran filed a petition to reopen a claim for service connection for a low back condition which was received on June 24, 1997, which was denied in a September 1997 rating decision. The Veteran timely appealed the decision and in a February 2005 decision, the Board granted the petition to reopen and remanded the claim for additional development. A March 2006 rating decision granted service connection for low back strain and assigned an initial rating effective June 24, 1997, the date the Veteran filed to reopen a claim for service connection for a low back condition. The Veteran filed a claim for service connection for bilateral lower extremity condition as secondary to his service-connected lumbar spine condition on April 4, 2007, which was denied by an October 2007 rating decision. The Veteran timely appealed the October 2007 rating decision. The Board remanded the claims in July 2009 and January 2011. While the case was in remand status, in April 2011, the RO granted service connection for left lumbar radiculopathy and assigned a 20 percent rating effective April 4, 2007. The Board notes this effective date claim stems from the RO's initial award of a separate rating for left lower extremity radiculopathy in April 2011, effective April 4, 2007. As this determination established entitlement to compensation for a disability as opposed to deciding how much compensation should be awarded, the Board will evaluate this effective date claim pursuant to the statutes and regulations governing the assignment of effective dates for the award of service connection, and not those governing the award of increased ratings. As noted above, the effective date of a service connection claim must either be the date of receipt of the claim or the date entitlement arose, whichever is later. Looking at the medical evidence in the most favorable light, the Board finds there is evidence of left lower extremity radiculopathy complaints as early as 1993. A June 1993 VA examination reflects that the Veteran complained of "terrible pains" radiating into his lower extremities. At that time, the Veteran was diagnosed with left lower extremity radiculopathy due to a deficit at L5-S1. At the time of a VA examination in August 1995, the Veteran complained of pain radiating into his lower extremities, and he was diagnosed with left lower extremity radiculopathy. An August 2006 letter from the Veteran's private treatment provider indicated the Veteran was diagnosed with radiculopathy. Concerning the date of receipt of the claim, the Board notes that claim for service connection for a lower extremity condition was received on April 4, 2007. However, the Board finds that the left lower extremity radiculopathy claim derives from the March 2006 rating decision which granted service connection for low back strain and assigned an initial rating effective June 24, 1997, the date the Veteran filed to reopen a claim for service connection for a low back condition, which he timely appealed. In this case, the Board finds the left lower extremity radiculopathy rating is a derivative claim from the June 24, 1997, claim. See Chavis, 34 Vet. App. at 28-29. As the date of the claim is June 24, 1997, the Board must discuss the pertinent regulatory amendments that occurred in September 2003. The Board notes the effective date of the regulatory amendment allowing for separate evaluations of neurological manifestations associated with spine disabilities was September 26, 2003. 68 Fed. Reg. 51, 454 (Aug. 27, 2003) (eff. Sept. 26, 2003). However, the assignment of separate ratings for neurologic abnormalities associated with a spine disability was not precluded by the rating criteria prior to the September 2003 amendment. See 38 C.F.R. § 4.71a (2000). Instead, the amendment added an explicit requirement that associated neurologic abnormalities be rated separately. As such, it is possible to assign a separate compensable rating for an associated neurologic abnormality, and thus an effective date for the award of one prior to the effective date of the September 2003 amendment. The Board observes, however, that the assignment of such a separate compensable rating for an associated neurologic abnormality must still conform with the other statutes and regulations governing the assignment of disability ratings, including the rule against pyramiding. The evaluation of the same disability under several DCs, known as pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In this case, the Board finds that the assignment of an effective date for the separate left lower extremity rating prior to September 2003 amendment would not result in impermissible pyramiding. 38 C.F.R. § 4.14. Under the pre-2003 amendment version of the regulations, certain DCs specifically contemplated both orthopedic and neurologic manifestations. See, e.g., 5285, 5293. Thus, to assign a separate rating for an associated neurologic abnormality during a period when a veteran was in receipt of a rating for a spine disability that contemplated neurologic manifestations would constitute pyramiding. However, in this case, prior to the 2003 amendments, the Veteran was rated for low back strain. The corresponding pre-2003 amendment DC was DC 5295. Under the pre-2003 version of the regulations, disabilities rated under DC 5295 were to be rated based on limitation of motion of the affected joint. Limitation of motion pertains to orthopedic manifestations and not neurologic manifestations. Thus, based on the rating criteria in use prior to the 2003 amendment, it does not appear that the Veteran's assigned rating contemplated neurologic manifestations. In this regard, the March 2006 rating decision does not indicate that any symptoms of left lower extremity radiculopathy were considered as part of the rating. Having determined that a separate compensable rating for the Veteran's left lower extremity radiculopathy may be assigned prior to September 26, 2003, and that such a rating would not constitute pyramiding, the Board must determine the appropriate effective date. An effective date is granted based on the later of two dates: the date of the claim or the date entitlement arose. In this case, as explained above, the later of those dates is June 24, 1997, when the Veteran filed a petition to reopen his claim for service connection for a lumbar spine condition. 38 C.F.R. § 3.400(b)(2). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 20 percent prior to May 22, 2014, and in excess of 40 percent thereafter, for left lower extremity radiculopathy is remanded. The Veteran is seeking an increased rating for his left lower extremity radiculopathy. In this regard, as reflected in the decision above, the appeal period begins in June 1997. However, the initial VA examination concerning the severity of the Veteran's spine condition and left lower extremity radiculopathy condition was in November 2005. Although the record includes some evidence that the Veteran was diagnosed with and experienced symptoms of radiculopathy, including private treatment records dated in April 1999 and August 2001, those records include limited information concerning symptom severity. As such, the Board finds that the Veteran should be afforded a VA examination to address the severity of his left extremity radiculopathy, including a retrospective medical opinion addressing the severity of the Veteran's left lower extremity radiculopathy, since June 24, 1997. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). 2. Entitlement to SMC for loss of use of a creative organ is remanded. SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). Impotence is tantamount to loss of use of a creative organ. See 38 C.F.R. § 4.115b, DC 7522. VA policy is to pay special monthly compensation for loss of use of a creative organ whenever a service-connected disease causes loss of erectile power. It must initially be established, however, that the loss of erectile dysfunction is a manifestation of a service-connected disease or injury. The August 2021 memorandum decision notes that the Board erred by not addressing the Veteran's claim to SMC. The memorandum decision states that the record contains evidence that the Veteran's loss of use of a creative organ is caused by his low back disability. The evidence of record reflects that the Veteran experiences erectile dysfunction. An October 2016 VA treatment record notes that the Veteran reported that his low back pain "affects his activities and his sexual life." However, a May 2007 VA examination of the Veteran's spine states that while the Veteran has a history of erectile dysfunction, it also says the etiology of the symptom is not related to the claimed disability. In addition, the Veteran's VA treatment records reflect that he has "impotence of psychogenic origin," which suggest his erectile dysfunction is related to his service-connected psychiatric disorder. On remand, further clarification is needed to determine whether the Veteran's erectile dysfunction is related to his service-connected lumbar spine or psychiatric disorder. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate examiner to determine the severity of his service-connected left lower extremity radiculopathy. The entire claims file should be reviewed by the examiner. (a.) The left lower extremity radiculopathy should be described in terms of mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis from a medical standpoint from June 24, 1997. (b.) If it is not possible to provide any of the requested opinion, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. (c.) All opinions expressed should be accompanied by supporting rationale. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of his erectile dysfunction. The entire claims file should be reviewed by the examiner. (a.) The examiner should provide an opinion as to the medical probability that the Veteran's erectile dysfunction is proximately caused or aggravated (i.e., worsened beyond natural progression) by his service-connected lumbar spine condition or psychiatric disorder. (b.) The examiner should address the Veteran's assertion, as noted in an October 2016 VA treatment record, that his low back pain "affects his activities and his sexual life" and that he is noted to have "impotence of psychogenic origin." (c.) The examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). (d.) The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be acknowledged and considered in formulating any opinion. (e.) If medical literature is relied upon, the examiner should identify and specifically cite each reference material used. The examiner should specifically discuss any contradictory evidence in the claims file and reconcile that evidence with their findings. (f.) All opinions should be accompanied by supporting rationale explaining how the clinician arrived at the conclusions expressed. 3. After the above development and any additionally indicated development has been completed, readjudicate the issues on appeal. RACHEL E. JENSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Gray, Associate 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.