Citation Nr: 23041007 Decision Date: 07/26/23 Archive Date: 07/26/23 DOCKET NO. 15-02 530 DATE: July 26, 2023 ORDER Entitlement to an effective date of April 17, 2012, but no earlier, for the grant of service connection for radiculopathy of the left lower extremity is granted. REMANDED Entitlement to an evaluation in excess of 10 percent for mechanical low back pain with lumbar spondylosis prior to August 10, 2018, is remanded. Entitlement to an evaluation in excess of 40 percent for mechanical low back pain with lumbar spondylosis on or after August 10, 2018, is remanded. Entitlement to an evaluation in excess of 10 percent for limitation of left knee extension (previously characterized as retropatellar pain syndrome of the left knee) prior to June 23, 2022, is remanded. Entitlement to an evaluation in excess of 20 percent for limitation of left knee extension on or after June 23, 2022, is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for increased evaluation for his service-connected low back disorder on June 7, 2010. 2. During the pendency of the appeal for an increased evaluation, entitlement arose on April 17, 2012, for service connection for radiculopathy of the left lower extremity. CONCLUSION OF LAW The criteria for an effective date of April 17, 2012, for the grant of service connection for radiculopathy of the left lower extremity have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1996 to May 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board notes that another hearing was scheduled for the Veteran. However, in a February 2021 correspondence, he withdrew that hearing request. The Board remanded the case for additional development in December 2018 and March 2022. The case has since been returned to the Board for appellate review. During the pendency of the appeal, in a July 2022 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation for the Veteran's service-connected left knee disability to 20 percent effective from June 23, 2022. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remains on appeal. Law and Analysis Neither the Veteran nor his representative has raised any specific issues with the duty to notify or duty to assist with regard to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply to claims filed on or after March 24, 2015. Under the former regulations prior to March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under laws administered by 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. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that effective date of April 17, 2012, but no earlier, is warranted for the grant of service connection for left lower extremity radiculopathy. In an August 2003 rating decision, the RO granted service connection for mechanical low pain and assigned a 10 percent evaluation effective from May 13, 2002. At that time, there was no lay or medical evidence referencing left lower extremity radiculopathy or suggesting that such a disorder was present or being claimed. Thereafter, the Veteran submitted an informal claim for an increased evaluation for his service-connected low back disability on June 7, 2010. He did not communicate any intent to file a claim for service connection for radiculopathy of the left lower extremity. However, the Board notes that the rating criteria for spine disabilities provides that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). During the pendency of the appeal for the increased evaluation claim for the Veteran's service-connected low back disability, the RO granted service connection for radiculopathy of the left lower extremity effective from August 10, 2018. The RO based the effective date on the date of a thoracolumbar spine disability benefits questionnaire (DBQ), which had confirmed a diagnosis of radiculopathy of the left lower extremity. Thus, the RO determined that August 10, 2018, was the date on which entitlement arose. The Board notes that the term "date entitlement arose" is not defined in the current statute or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. In this case, private treatment records dated in 2010 document right-sided lumbar radicular pain. However, there was no notation of any symptoms or impairment involving the lower left extremity. Thereafter, an April 17, 2012, private medical record noted that the Veteran had low back pain with intermittent pain in his legs. He was diagnosed with radiculopathy of the left lower extremity secondary to his spinal impairment. A June 2022 VA examiner later provided a retrospective medical opinion after reviewing the Veteran's medical records. She noted that a January 2010 MRI revealed slight left paracentral disc protrusion at L4-5, which shows that there were some pathological changes in the anatomy. However, she also observed that an August 2010 examination was negative for objective findings of radiculopathy, despite the Veteran's report of some intermittent symptoms of sciatica. The examiner indicated that the first notation of objective findings of radiculopathy appear in private treatment records dated in 2012 wherein the symptoms appear apparent and persistent. Therefore, the examiner concluded that the Veteran's radiculopathy seems to have first started in 2012, even though there were pathological changes in the spine in 2010. Based on the foregoing and resolving any doubt in favor of the Veteran, the evidence shows that it was first factually ascertainable on April 17, 2012, that the Veteran had radiculopathy of the left lower extremity associated with his service-connected back disability. As noted above, the effective date of disability compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400(b)(2). Accordingly, the Board finds that an effective date of April 17, 2012, is warranted for the grant of service connection for radiculopathy of the left lower extremity. REASONS FOR REMAND Upon review, the Board finds that additional development is needed prior to adjudication of the issues remaining on appeal. The Veteran was most recently afforded VA examinations in connection with his claims for increased evaluation for his service-connected left knee and lumbar spine disabilities in June 2022. The VA examiner indicated there was evidence of pain with weight-bearing and non-weight bearing; however, she did not provide the range of motion findings for both weight-bearing and nonweight-bearing. The examiner also indicated that it is not medically advisable to conduct passive range of motion testing, but she did not explain why. Nor did the examiner address whether the range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing could be estimated for the September 2010 VA examination. Therefore, the Board finds that an additional VA examination is needed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); Correia v. McDonald, 28 Vet. App. 158, 169 (2016). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected low back and left knee disabilities that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected mechanical low back pain with lumbar spondylosis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the lumbar spine disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the lumbar spine. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The examiner should also indicate whether there is any form of ankylosis. In addition, the examiner should state the total duration of incapacitating episodes over the past 12 months and identify all neurological manifestations of the disability, to include any radiculopathy affecting his right lower extremity. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner should also discuss any additional functional impairment that occurs during flare-ups, including any additional limitation of motion. Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for the other VA examinations conducted during the appeal period in September 2010 and November 2019. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After obtaining any outstanding records, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected left knee disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the left knee disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the right and left knees. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weightbearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. The examiner should also discuss any additional functional impairment that occurs during flare-ups, including any additional limitation of motion. The examiner should further indicate whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; or, the symptomatic removal of semilunar cartilage. The examiner should further state whether there is any malunion or nonunion of the tibia and fibula. In addition, the examiner should address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The examiner should also address whether the Veteran has a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability and whether a medical provider has prescribed an assistive device (e.g., cane(s), crutch(es), walker) and/or bracing for ambulation. It should be noted whether the condition has been repaired, unrepaired, or has a failed repair. The examiner should further indicate whether the Veteran has patellar instability involving the patellofemoral complex with recurrent instability after surgical repair that has required a prescription from a medical provider for a brace, cane, and/or walker. It should be noted that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Further, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and non-weight-bearing can be estimated for the September 2010 and November 2019 VA examinations (where not actually provided. If the examiner is unable to provide these range of motion findings, he or she should clearly explain so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. The AOJ should ensure compliance with the preceding directives and conduct any other development that may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.