Citation Nr: 22054897 Decision Date: 09/26/22 Archive Date: 09/26/22 DOCKET NO. 20-14 574 DATE: September 26, 2022 ORDER An effective date of September 22, 2011, but no earlier, for service connection for right lower extremity sciatic nerve radiculopathy is granted. An effective date of September 22, 2011, but no earlier, for service connection for right lower extremity femoral nerve radiculopathy is granted. An effective date of September 22, 2011, but no earlier, for service connection for left lower extremity sciatic nerve radiculopathy is granted. An effective date of September 22, 2011, but no earlier for service connection for left lower extremity femoral nerve radiculopathy is granted. The reduction of the rating for lumbar spine L2-L5 transforaminal interbody fusion residuals and osteoarthritis to include hip and leg pain from 20 percent to 10 percent, effective as of September 22, 2020, was improper and the 20 percent rating is restored, effective September 22, 2020. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. Basic eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is granted. REMANDED Entitlement to a rating in excess of 20 percent for lumbar spine L2-L5 transforaminal interbody fusion residuals and osteoarthritis to include hip and leg pain is remanded. Entitlement to a rating in excess of 20 percent prior to August 12, 2020, and in excess of 40 percent on and after August 12, 2020, for right lower extremity sciatic nerve radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity femoral nerve radiculopathy is remanded. Entitlement to a rating in excess of 20 percent prior to August 12, 2020, and in excess of 40 percent on and after August 12, 2020, for left lower extremity sciatic nerve radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent for left lower extremity femoral nerve radiculopathy is remanded. FINDINGS OF FACT 1. The right lower extremity sciatic and femoral nerve radiculopathy and left lower extremity sciatic and femoral nerve radiculopathy are secondary to the service connected lumbar spine L2-L5 transforaminal interbody fusion residuals and osteoarthritis to include hip and leg pain. 2. The September 2011 application to reopen the claim of service connection for a low back disability and associated symptomology was received by the Department of Veterans Affairs (VA) on September 22, 2011. 3. Service connection was established for lumbar spine L2-L5 transforaminal interbody fusion residuals and osteoarthritis to include hip and leg pain, effective September 22, 2011. 4. The evidence of record at the time of the November 2020 reduction action does not establish material improvement of the lumbar spine disability. 5. Service connection has been established for lumbar spine L2-L5 transforaminal interbody fusion residuals and osteoarthritis with hip and leg pain rated 20 percent disabling; right lower extremity sciatic nerve radiculopathy rated as 40 percent disabling; right lower extremity femoral nerve radiculopathy rated as 20 percent disabling; left lower extremity sciatic nerve radiculopathy rated as 40 percent disabling; left lower extremity femoral nerve radiculopathy rated as 20 percent disabling; cervical spine degenerative arthritis rated as 10 percent disabling; and low back scar rated as noncompensable. The Veteran has a combined 90 percent service-connected rating. 6. The service-connected disabilities are of such severity to preclude the Veteran from securing and following substantially gainful employment consistent with his education and work experience. 7. Basic eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 is established. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 22, 2011, but no earlier, for service connection for right lower extremity sciatic nerve radiculopathy, have been met. 38 U.S.C. §§ 5101, 5110, 7105; 38 C.F.R. §§ 3.1, 3.102, 3.104, 3.151, 3.155, 3.400. 2. The criteria for an effective date of September 22, 2011, but no earlier, for service connection for right lower extremity femoral nerve radiculopathy, have been met. 38 U.S.C. §§ 5101, 5110, 7105; 38 C.F.R. §§ 3.1, 3.102, 3.104, 3.151, 3.155, 3.400. 3. The criteria for an effective date of September 22, 2011, but no earlier, for service connection for left lower extremity sciatic nerve radiculopathy, have been met. 38 U.S.C. §§ 5101, 5110, 7105; 38 C.F.R. §§ 3.1, 3.102, 3.104, 3.151, 3.155, 3.400. 4. The criteria for an effective date of September 22, 2011, but no earlier, for service connection for left lower extremity femoral nerve radiculopathy, have been met. 38 U.S.C. §§ 5101, 5110, 7105; 38 C.F.R. §§ 3.1, 3.102, 3.104, 3.151, 3.155, 3.400. 5. The reduction in the rating for lumbar spine L2-L5 transforaminal interbody fusion residuals and osteoarthritis with hip and leg pain from 20 percent to 10 percent, effective September 22, 2020, was improper, and restoration of the prior rating is warranted. 38 C.F.R. § 3.344(a). 6. The criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 7. The criteria for basic eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 are met. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1967 to January 1969. In June 2020, the Board of Veterans' Appeals (Board) granted 20 percent ratings for both lumbar spine L2-L5 transforaminal interbody fusion residuals and osteoarthritis and left lower extremity radiculopathy and a separate 10 percent rating for right lower extremity radiculopathy, effective November 21, 2017. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court granted the Parties' Joint Motion for Partial Remand; vacated those portions of the Board's June 2020 decision which denied separate ratings for right lower extremity radiculopathy and left lower extremity radiculopathy prior to November 21, 2017, and ratings in excess of 20 percent for the lumbar spine disability and the left lower extremity radiculopathy on and after November 21, 2017,and in excess of 10 percent for the right lower extremity radiculopathy on and after November 21, 2017; and remanded the issues to the Board for further action consistent with the Joint Motion for Partial Remand. In August 2020, the Veteran submitted a Veteran's Application for Increased Compensation Based on Unemployability, VA Form 21-8940. When entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability or disabilities, it is part of the claim for benefits for the underlying disability or disabilities. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Therefore, the issue of entitlement to a TDIU, is on appeal and will be addressed below. Effective Dates Generally, the effective date for service connection is the day after service separation or the date entitlement arose, whichever is later, if the claim is received within one year of the date of separation from service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Where a claim for service connection is reopened and granted based upon new and material evidence, other than service records, received after the prior rating decision has become final, the effective date will be the date of receipt of claim to reopen or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q). Prior to March 24, 2015, any communication from the Veteran, his accredited representative, a Member of Congress, or some person acting as next friend of a claimant may be considered an informal claim indicating an intent to apply for one or more benefits under the laws administered by the VA, from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2014). Where VA does not forward an application form to the Veteran, the date of receipt of the Veteran's 'informal claim' must be accepted, as a matter of law, as the date of his claim or application for purposes of determining an effective date under 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Servello v. Derwinski, 3 Vet. App. 196, 200 (1992). In February 1969, the Veteran submitted a Veteran's Application for Compensation or Pension, VA Form 21-526, seeking service connection for a lumbar spine disability and radiculopathy. In April 1969, the Agency of Original Jurisdiction denied service connection for a lumbar spine disability and radiculopathy. The Veteran did not file a notice of disagreement with the adverse decision. New and material evidence was not received within one year of the rating decision and the February 1969 rating decision became final. In September 2011, the Veteran submitted an informal application to reopen the claim of service connection. The claim was received by VA on September 22, 2011. Clinical documentation from E. Neisch, M.D., reflects treatment for radiating lumbar spine pain A November 2011, treatment record state that the Veteran exhibited ongoing low back pain and tingling and numbness of the feet bilaterally and examination noted decreased reflexes. An August 2012 treatment record notes that the Veteran reported a worsening of symptoms with tingling and numbness of the bilateral feet and down his right leg. A sensory examination noted numbness below the left knee. Clinical documentation dated in August 2012 states that the Veteran exhibited ongoing low back pain radiating down his left leg and numbness from the knee to his foot. The doctor concluded that the Veteran's "symptoms of pain, numbness, tingling are more likely than not are connected to the event that stared his pain which occurred during his time in the service." A January 2013treatment record relates that the Veteran reported tingling and numbness of the bilateral feet and longstanding sciatic pain down the left leg and numbness and tingling down the right leg. A June 2012 written statement from the Veteran indicates that he experienced daily back pain and pain shooting down his left leg and right foot numbness. In March 2018, the Board of Veterans' Appeals (Board) granted service connection for a lumbar spine disability to include hip and leg pain. In April 2018, the Agency of Original Jurisdiction effectuated the Board's decision and established service connection was granted for a lumbar spine disability with hip and leg pain, effective September 22, 2011. In June 2020, the Agency of Original Jurisdiction established service connection for right lower extremity sciatic nerve radiculopathy, right lower extremity femoral nerve radiculopathy, left lower extremity sciatic nerve radiculopathy, and left lower extremity femoral nerve radiculopathy and effectuated the awards as of November 21, 2017. Right and left lower extremity radiculopathy has been shown to be secondary to the service connected lumbar spine disability. The radiculopathy was ascertainable on September 22, 2011, the effective date for the award of service connection for the lumbar spine disability. The Veteran's informal application to reopen the claim of service connection was received by VA on September 22, 2011. Therefore, the Board concludes that the appropriate effective date for the award of service connection for right lower extremity sciatic nerve radiculopathy, right lower extremity femoral nerve radiculopathy, left lower extremity sciatic nerve radiculopathy and left lower extremity femoral nerve radiculopathy is September 22, 2011, the date of receipt of the informal claim to reopen. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Board observes that an effective date prior to September 22, 2011, may not be assigned for the radiculopathy as that is the effective date of service connection for the lumbar spine disability to which the radiculopathy is a component or secondary disability. Therefore, an effective date of September 22, 2011, and no earlier, for right lower extremity sciatic nerve radiculopathy, right lower extremity femoral nerve radiculopathy, left lower extremity sciatic nerve radiculopathy, and left lower extremity femoral nerve radiculopathy is granted. Reduction The circumstances under which a rating may be reduced are specifically limited and carefully circumscribed by regulations promulgated by the Secretary of VA. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). VA will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. Where a rating has been in effect for five years or more, the rating will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. § 3.344. In any rating reduction case, it must not only be determined that an improvement in a disability has actually occurred but also that that improvement actually shows an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413 (1993). In June 2020, the Board granted an increased 20 percent rating for the lumbar spine disability. In a June 2020 rating decision the Agency of Original Jurisdiction implemented the 20 percent rating for the lumbar spine disability from November 21, 2017. The report of a September 2020 thoracolumbar spine examination conducted for VA states that the Veteran reported a worsening of his lumbar spine and leg pain with stiffness, decreased range of motion, spasms, tingling and numbness in his legs. On examination of the lumbar spine, the Veteran exhibited a range of motion of forward flexion from to 65 degrees, extension to 15 degrees, lateral flexion to 15 degrees, bilaterally, and lateral rotation to 15 degrees, bilaterally; pain with all range of motion; and bilateral lower extremity radiculopathy. The Veteran was diagnosed with L-2 to L-5 transforaminal interbody fusion, osteoarthritis, and bilateral lower extremity radiculopathy. The examiner states the Veteran was unable to sit, to stand or to walk for extended periods due to "severity of pain, poor range of motion, weakness in the legs: and the "Veteran is unable to function in an occupational environment." In November 2020, the Agency of Original Jurisdiction reduced the rating for the lumbar spine disability as "the recent VA examination completed on September 22, 2020, are more suggestive of a 10 percent evaluation" and "sustained improvement has also been demonstrated." The evidence of record at the time of the November 2020 reduction action, including the reports of the September 2020 VA examination neither shows that a sustained improvement of the lumbar spine disability had occurred nor indicates that any improvement would continue in the Veteran's ability to function under the ordinary conditions of life and work. Indeed, the September 2020 examination actually showed a worsening of the service-connected disability since the prior November 2019 VA examination. The Agency of Original Jurisdiction did not identify any sustained improvement of the lumbar spine disability in making the reduction and expressly based the reduction solely upon the September 2020 examination report, which did not identify any sustained improvement of the lumbar spine disability. The Agency of Original Jurisdiction noted only that the disability did not currently meet the criteria for a 20 percent rating and noting sustained improvement but not identify any such sustained improvement. The failure to make a finding of improvement is a defect requiring restoration. Brown v. Brown, 5 Vet. App. 413 (1993). In the absence of any specific and objective findings of material improvement of the lumbar spine disability, the Board concludes that the reduction of the rating for that disability from 20 percent to 10 percent effective September 22, 2020, was improper. 38 C.F.R. § 3.344(a). As the reduction action did not make a finding of actual improvement in the Veteran's ability to function under the ordinary conditions of life and work, the prior 20 percent rating will be restored effective September 22, 2020. TDIU The Veteran contends that a TDIU is warranted as the service-connected disabilities render him unable to secure or maintain substantially gainful employment. Total ratings for compensation purposes may be assigned where the combined schedular rating for the service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to render the veteran unemployable without regard to either advancing age or the presence of any nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341. Total ratings for compensation purposes are assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or to follow a substantially gainful occupation as a result of service-connected disabilities. If there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentage referred to in this paragraph for the service-connected disability are met and in the judgment of the rating agency such service-connected disabilities make the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Service connection has been established for lumbar spine L2-L5 transforaminal interbody fusion residuals and osteoarthritis with hip and leg pain rated 20 percent disabling; right lower extremity sciatic nerve radiculopathy rated as 40 percent disabling; right lower extremity femoral nerve radiculopathy rated as 20 percent disabling; left lower extremity sciatic nerve radiculopathy rated as 40 percent disabling; left lower extremity femoral nerve radiculopathy rated as 20 percent disabling; cervical spine degenerative arthritis rated as 10 percent disabling; and low back scar rated as noncompensable. The Veteran has a combined 90 percent service-connected rating. Therefore, the Veteran meets the schedular criteria for consideration of the assignment of a TDIU. 38 C.F.R. § 4.16(a). The report of a December 2019 VA spine examination states that the cervical strain and degenerative arthritis impacted the Veteran's ability to perform occupational tasks due to restricted range of motion and difficulty driving. The report of a September 2020 VA spine examination states that the lumbar spine osteoarthritis, transforaminal interbody fusion residuals, right lower extremity radiculopathy, and left lower extremity resulted in functional loss with difficulty sitting, standing and walking for prolonged periods and impacted the Veteran's ability to perform occupational tasks due to the severity of his pain, poor range of motion and weakness in his legs. The examiner concluded the Veteran is "unable to function in an occupational environment." In his August 2020 Veterans Application for Increased Compensation Based on Unemployability, VA Form 21-8940, the Veteran stated that he last worked on a full-time basis in September 2001. The Veteran reported that he was unable to work due to the service-connected lumbar spine, right lower extremity radiculopathy, left lower extremity radiculopathy, and cervical spine disabilities which prevented him from moving easily and were a significant impediment to gainful employment. The Veteran meets the schedular criteria for a TDIU. He has reported having not worked on a full-time basis since 2001. The combined effect of the service connected disabilities alone renders the Veteran to be unable to secure or follow substantially gainful employment. Therefore, a TDIU is warranted. 38 C.F.R. § 4.16(a). The Board has considered whether special monthly compensation at the housebound rate is warranted. Entitlement to a TDIU based on the combined impact of the service-connected lumbar spine disability, right lower extremity radiculopathy, left lower extremity radiculopathy and cervical spine disability has been established. The Veteran does not have a single service connected disability rated at 100 percent or a TDIU due to a single disability and an additional service connected disability ratable at 60 percent, separate and distinct from the 100 percent service-connected disability. Therefore, an award of special monthly compensation at the housebound rate is not for assignment. Basic Eligibility for Dependents' Educational Assistance Benefits Basic eligibility for Dependents' Educational Assistance benefits exists where a veteran was discharged from service under conditions other than dishonorable and has a permanent and total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021. The Board has granted a TDIU and basic eligibility for Dependents' Educational Assistance Benefits is therefore established. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for lumbar spine L2-L5 transforaminal interbody fusion residuals and osteoarthritis to include hip and leg pain; a rating in excess of 20 percent prior to August 12, 2020, and in excess of 40 percent on and after August 12, 2020, for right lower extremity sciatic nerve radiculopathy; an initial rating in excess of 20 percent for right lower extremity femoral nerve radiculopathy; a rating in excess of 20 percent prior to August 12, 2020, and in excess of 40 percent on and after August 12, 2020, for left lower extremity sciatic nerve radiculopathy; and an initial rating in excess of 20 percent for left lower extremity femoral nerve radiculopathy is remanded. The Veteran contends that increased ratings are warranted for his service-connected lumbar spine, right lower extremity radiculopathy, and left lower extremity radiculopathy. The report of a September 2020 spine examination conducted for VA states that the service connected lumbar spine disability was not manifested by any urinary symptoms. Clinical documentation from S. Thibault, M.D., dated in September 2020 notes that the Veteran reported symptoms of urinary frequency, nocturia, leakage and incontinence with onset of symptoms after his March 2020 lumbar spine surgery. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the reported worsening of the service-connected lumbar spine neurological symptoms, the Board finds that further lumbar spine evaluation is needed. Clinical documentation dated after June 2021 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider, who has treated him for the service connected lumbar spine disability, right lower extremity radiculopathy, and left lower extremity radiculopathy. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records dated after June 2021. 3. Schedule the Veteran for a VA spine examination conducted by a medical doctor to assist in determining the current nature and severity of the service-connected lumbar spine L2-L5 transforaminal interbody fusion residuals and osteoarthritis to include hip and leg pain. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion of the lumbar spine for weight bearing and nonweight bearing. The examiner should indicate the degree of lumbosacral spine motion at which any observed pain begins. The examiner should state whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, or incoordination. (b) Indicate to what extent, the Veteran experiences functional loss of the lumbar spine due to pain or any other symptoms during flare ups or with repeated use. (c) State whether or not there is any ankylosis of the spine or any segment of the spine. (d) Note any incapacitating episodes associated with the lumbar spine disability and the duration. (e) Describe any lower extremity neurologic disabilities identified as due to the lumbar spine disability, the nerves affected, and the level of impairment. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.R. Kardian, 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.