Citation Nr: 23041207 Decision Date: 07/27/23 Archive Date: 07/27/23 DOCKET NO. 16-39 394 DATE: July 27, 2023 ORDER For the initial rating period on appeal from May 1, 2011 to December 16, 2021, a disability rating of 40 percent for lumbar spine degenerative joint disease with arthritis and intervertebral disc syndrome (IVDS) (hereinafter referred to as a back disability) is granted. For the entire initial rating period on appeal from May 1, 2011, a disability rating in excess of 40 percent for the back disability is denied. For the initial rating period on appeal from May 1, 2011, a disability rating in excess of 20 percent for left lower extremity radiculopathy is denied. For the initial rating period on appeal from December 16, 2021, a disability rating in excess of 20 percent for right lower extremity radiculopathy is denied. An effective date earlier than December 16, 2021 for the grant of service connection for right lower extremity radiculopathy is denied. FINDINGS OF FACT 1. For the initial rating period on appeal from May 1, 2011 to December 16, 2021, the back disability has been manifested by limitation of flexion to 30 degrees or less. 2. For the entire initial rating period on appeal from May 1, 2011, the back disability did not more nearly approximate ankylosis of the thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during any 12-month period. 3. For the initial rating period on appeal from May 1, 2011, the left lower extremity nerve disability has not been manifested by moderately severe incomplete paralysis of the affected nerve. 4. For the initial rating period on appeal from December 16, 2021, the right lower extremity nerve disability has not been manifested by moderately severe incomplete paralysis of the affected nerve. 5. Entitlement to service connection for right lower extremity radiculopathy did not arise until December 16, 2021. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, for the initial rating period on appeal from May 1, 2011 to December 16, 2021, the criteria for a 40 percent disability rating for the back disability have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5237, 5243. 2. For the entire rating initial period on appeal from May 1, 2011, the criteria for a disability rating in excess of 40 percent for the back disability have not been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5237, 5243. 3. For the entire initial rating period on appeal from May 1, 2011, the criteria for a disability rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. For the entire initial rating period on appeal from December 16, 2021, the criteria for a disability rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 5. The criteria for an effective date earlier than December 16, 2021 for service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from July 1973 to October 1973, June 1974 to July 1977, and from June 1985 to April 2011. In October 2022, the Board remanded the issues on appeal to the Agency of Original Jurisdiction (AOJ) for a new VA medical opinion. May 2023 VA medical opinions that comply with the October 2022 remand directives have been associated with the record; therefore, an additional remand to comply with the October 2022 remand directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Subsequently, a June 2023 rating decision granted a 40 percent rating for the back disability, effective December 16, 2021 (date of most recent VA examination). 1. For the initial rating period from May 1, 2011 to December 16, 2021, a 40 percent rating for the back disability is granted. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). Ratings under the General Rating Formula are made 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. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243). Ratings under the General Rating Formula are made 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. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; 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 assigned for forward flexion of the thoracolumbar spine at 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 assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For the initial rating period on appeal from May 1, 2011 to December 16, 2021, the Veteran is in receipt of a 10 percent disability rating for the back disability under Diagnostic Code 5243. The Veteran is in receipt of a 40 percent rating from December 16, 2021. The Veteran contends generally that the back disability has been manifested by more severe symptoms and impairment than contemplated by the 10 percent disability rating assigned for the rating period on appeal from May 1, 2011 to December 16, 2021. See November 2015 notice of disagreement. After a review of all the evidence, lay and medical, and considering additional limitations of motion and function due to pain, the Board finds that, for the initial rating period on appeal from May 1, 2011 to December 16, 2021, the service-connected back disability has been manifested by limitation of flexion to 30 degrees or less. Diagnostic Code 5237 warrants a 40 percent rating for forward flexion less than 30 degrees or favorable ankylosis of the entire thoracolumbar spine. In this case, May 2022 private treatment records reflect the back was found to have forward flexion to 30 degrees. The May 2023 VA medical opinion reflects the VA examiner indicated that, while the December 2021 VA examination report reflects forward flexion to 80 degrees, the December 2021 VA examiner did not account for weight-bearing and non-weight bearing, and, therefore, when accounting for weight-bearing, non-weight bearing, and flare-ups, there would be additional loss of back range of motion. See May 2023 VA medical opinion. The VA and private treatment records also reflect the use of epidurals for pain management and that the Veteran has consistently reported that symptoms of the back disability have been relatively the same over the course of the appeal period. A September 2013 statement reflects the Veteran reported constant lower back pain, that it was hard to get out of bed, and that he had been given prescription pain medication for the back disability. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the disability picture more nearly approximates the criteria described for a 40 percent rating for the back disability for the initial rating period on appeal from May 1, 2011 to December 16, 2021. See 38 C.F.R. §§ 4.3, 4.7, 4.71a. 2. For the entire initial rating period from May 1, 2011, a rating in excess of 40 percent for the back disability is denied. After a review of all the evidence, lay and medical, the Board also finds that, for the entire rating period on appeal from May 1, 2011, the back disability did not more nearly approximate ankylosis of the thoracolumbar spine or incapacitating episodes having a total duration of at least 6 weeks during any 12-month period, and the Veteran has not alleged otherwise. First, the evidence of record reflects no ankylosis of the spine, so a disability rating in excess of 40 percent is not warranted on that basis. See December 2021, March 2011 VA examination reports, VA and private treatment records. Second, as to incapacitating episodes due to IVDS, none of the evidence received by VA has conveyed that the Veteran ever had incapacitating episodes with a total duration of six weeks or more during any 12 month period on appeal. See VA and private treatment records. The December 2021 and March 2011 VA examination reports reflect the VA examiners did not discern incapacitating episodes having a total duration of at least one week during a 12 month period, and the Veteran has not alleged otherwise. As such, a disability rating in excess of 40 percent due to incapacitating episodes is not warranted. For these reasons, the Board finds that the persuasive weight of the evidence of record is against a finding that a disability rating in excess of 40 percent is warranted at any point during the rating period on appeal from May 1, 2011. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 3. For the initial rating period from May 1, 2011, a disability rating in excess of 20 percent for left lower extremity radiculopathy is denied. 4. For the initial rating period from December 16, 2021, a disability rating in excess of 20 percent for left lower extremity radiculopathy is denied. After a review of the lay and medical evidence, the Board finds that, for the initial rating period on appeal from May 1, 2011 as to the left lower extremity nerve disability, and for the period from December 16, 2021 as to the right lower extremity nerve disability, the criteria for a disability rating in excess of 20 percent for the right and left lower extremity disabilities have not been met or more nearly approximated under Diagnostic Code 8520. Throughout the rating period, the right and left lower extremity nerve disabilities have not been manifested by moderately severe incomplete paralysis. Specifically, findings from the December 2021 VA examination, and history and findings in the VA treatment records are consistent with a 20 percent rating under Diagnostic Code 8520 for the symptoms and level of impairment actually demonstrated by the right nerve disability. Diagnostic Code 8520 warrants a 40 percent rating for moderately severe incomplete paralysis. In this case, as noted at the December 2021 VA examination, the VA examiner specifically assessed moderate intermittent pain, paresthesias and/or dysesthesias, and numbness of the right lower extremity. As to the left lower extremity, the December 2021 VA examiner assessed moderate intermittent pain and paresthesias and/or dysesthesias. The December 2021 VA examiner also did not discern constant pain as to either lower extremity. The Board sought an additional VA medical opinion, which was obtained in May 2023. After reviewing the evidence of record, to include the December 2021 and March 2011 VA examination reports and VA and private treatment records, the May 2023 VA examiner opined that the right and left lower extremity manifested as, at worst, moderate incomplete paralysis of the affected nerves. The May 2023 VA examiner explained that the VA and private treatment records, to include the recent December 2021 VA examination report, were consistent with moderate incomplete paralysis of the right and left lower extremities. There is no competent opinion to the contrary of record. Based on the above, the persuasive weight of the evidence demonstrates that a disability rating in excess of 20 percent is not warranted under Diagnostic Code 8520 for the right lower extremity nerve disabilities. 5. An Effective Date for Service Connection for Right Lower Extremity Radiculopathy is Denied. An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran's duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA38 C.F.R. § 3.1(r). The Veteran contends generally that the AOJ should have assigned an earlier effective date than December 16, 2021 for the grant of service connection for right lower extremity radiculopathy. Having reviewed the relevant evidence of record for the time period on appeal, the Board finds entitlement to service connection for right lower extremity radiculopathy did not arise until December 16, 2021 (date of VA examination/right lower extremity radiculopathy diagnosis). The March 2011 VA examination report reflects the Veteran reported that he had been diagnosed with radiculopathy, and described low back pain traveling down the left leg to the big toe. On examination, there were no signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement. Motor function of the lower extremities was within normal limits, and a sensory examination showed intact sensation. The March 2011 VA examination report does not record complaints of right lower extremity symptoms or otherwise reflect abnormal neurological findings with regard to the right lower extremity. With regard to the Veteran's contention that the effective date for the right lower extremity radiculopathy should be earlier, the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. The evidence, to include the December 2021 (with right radiculopathy diagnosis) and March 2011 VA examination reports, reflect it was not until the December 16, 2021 VA examination that entitlement to service connection for right lower extremity radiculopathy arose, that is, when a diagnosis of the right lower extremity radiculopathy disability was made. The controlling regulation clearly and specifically provides that the effective date for service connection shall be the date entitlement arose or the date of receipt of the claim, whichever is later. 38 C.F.R. § 3.400(o). On these facts, because the earliest effective date legally possible has been assigned under 38 C.F.R. § 3.400, and no effective date for the award of service connection earlier than December 16, 2021 (date entitlement arose) is assignable, the appeal for an earlier effective date is without legal merit, and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). For these reasons, the Board concludes that an effective date prior to December 16, 2021 for service connection for right lower extremity radiculopathy is not warranted as a matter of law. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tenney, Ashleigh 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.