Citation Nr: 23053005 Decision Date: 09/23/23 Archive Date: 09/23/23 DOCKET NO. 20-03 708 DATE: September 23, 2023 ORDER Entitlement to an effective date of March 11, 2005, but no earlier, for the assignment of a 40 percent disability rating for service-connected lumbar spine degenerative disc disease, L4-5, is granted. Entitlement to an effective date of October 11, 2005, but no earlier, for the grant of service connection for left lower extremity sciatic neuralgia is granted. FINDINGS OF FACT 1. It is factually ascertainable that the Veteran's lumbar spine more nearly approximated flexion to 30 degrees or less from March 11, 2005. 2. The Veteran did not file a claim specifically for service-connected for left lower extremity sciatic neuralgia, it was raised during the Veteran's claim for an increased rating for his lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 11, 2005, but no earlier, for the assignment of a 40 percent disability rating for service-connected lumbar spine degenerative disc disease, L4-5, have been met. 38 U.S.C. §§ 1155, 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400, 19.21, 20.201. 2. The criteria for an effective date of October 11, 2005, but no earlier, for the grant of service connection for left lower extremity sciatic neuralgia have been met. 38 U.S.C. §§ 1155, 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400, 19.21, 20.201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1973 to April 1975, December 1981 to November 1988, and April 1989 to June 1999. The Board is grateful for his lengthy service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that implemented effective dates based on evidence cited in a September 2017 Board decision that granted entitlement to a 40 percent disability rating for the Veteran's lumbar spine degenerative disc disease and a separate 10 percent rating for left lower extremity neuropathy as associated with the Veteran's lumbar spine degenerative disc disease, but did not assign effective dates. Notably, the matters that arrived at the Board in September 2017 were brought to the Board on appeal from a January 2007 rating decision. See Board Decision, September 27, 2017; see also Rating Decision, January 10, 2007; Notice of Disagreement, July 12, 2017; Statement of the Case, March 8, 2008; VA Form 9, April 29, 2008. 1. Entitlement to an effective date of March 11, 2005, but no earlier, for the assignment of a 40 percent disability rating for service-connected lumbar spine degenerative disc disease, L4-5, is granted. 2. Entitlement to an effective date of October 11, 2005, but no earlier, for the grant of service connection for left lower extremity sciatic neuralgia is granted. The Veteran generally contends earlier effective dates are warranted for his 40 percent disability rating for his service-connected lumbar spine disability, as well as service-connection for left lower extremity sciatic neuralgia associated with his lumbar spine disability. The Veteran is currently in receipt of a 40 percent disability rating from November 2, 2009 for his lumbar spine. He is service connected for left lower extremity sciatic neuralgia from September 26, 2015. The Board finds earlier effective dates are warranted. Specifically, March 11, 2005 is the proper effective date for assignment of the 40 percent disability rating for the Veteran's lumbar spine, and October 11, 2005 is the proper effective date for the grant of service-connection for his left lower extremity sciatic neuralgia (hereinafter LLE neuralgia). Generally, the?effective date?of a claim for?service connection?will be the date of receipt of the claim or the date entitlement arose, whichever is later.? 38 U.S.C. § 5110?(a), (b);?38 C.F.R. § 3.400?(b). The effective date for an increase will typically be the date of receipt of claim, or date entitlement arose, whichever is later.? 38 U.S.C. § 5110;?38 C.F.R. § 3.400?(o)(1). However, for an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date; otherwise, the effective date will be the date of receipt of claim. ?38 U.S.C. § 5110;?38 C.F.R. § 3.400?(o)(2). Consequently, the award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was ascertainable (i.e., if the facts were found, if it is factually ascertainable) that the disorder had increased in severity during that time. If the increase occurred more than one year prior, the increase is effective the date of the claim. Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010); see also Harper, 10 Vet. App. 125, 126-27; 38 C.F.R. § 3.400?(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). Accordingly, it is for the Board to first determine the date of the claims and then when entitlement arose and compare the two for the purposes of assigning appropriate effective dates. Date of Claim October 11, 2005 is the date of the claim for an increased rating for the Veteran's lumbar spine. See Rating Decision, January 2007. Moreover, the Board observes that the Veteran never filed a claim explicitly for service connection for left lower extremity sciatic neuralgia; it was granted during the appeal for an increased rating for the Veteran's lumbar spine. See Board Decision, September 17, 2017; see also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Because the Veteran did not explicitly raise a claim for service connection for left lower extremity sciatic neuralgia and because it was granted in conjunction with his claim for an increased rating for his lumbar spine, the date of the claim for the Veteran's left lower extremity sciatic neuralgia will be the same as the Veteran's increased rating claim for his lumbar spine. There is a question of whether the Veteran's January 17, 2006 Application for Compensation or Pension constituted an informal notice of disagreement (NOD) to a May 2005 rating decision that granted an increased rating for the Veteran's lumbar spine, as he reported in the January 2006 filing unemployability due, in part, to his back. However, the Board does not find that is the case. A NOD is a written communication from a claimant expressing dissatisfaction or disagreement with an adjudicative determination by the RO and a desire to contest the result. 38 C.F.R. § 19.21 (b). Prior to March 24, 2015, informal NODs were also recognized. 38 C.F.R. § 20.201. Under the governing regulation in effect at the time of the Veteran's January 2006 filing, 38 C.F.R. § 20.201, a valid NOD must contain "terms which can be reasonably construed as disagreement with that determination and a desire for appellate review." Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002). Further, "[t]his requirement serves administrative efficiency by distinguishing a request for Board review from other routine communications in the wake of a VA decision. Assuming the veteran desires appellate review, meeting the requirement of § 20.201 is not an onerous task." Id. The Board acknowledges that the Veteran, prior to March 24, 2015, was not required to file a formal NOD. See 38 C.F.R. § 20.201. However, the Board cannot construe the Veteran's January 2006 application as a request for appellate review. No language within the application indicates the Veteran wished for Board review or appellate consideration. See Gallegos, 283 F.3d at 1314. Following an earlier RO denial, the Veteran did file a NOD. See Notice of Disagreement, June 13, 2003. Thus, the Veteran was aware of language necessary to initiate appellate review and chose not to do so in January 2006. Moreover, no new and material evidence was received within the one-year period following the May 2005 denial. Thus, the May 2005 rating decision became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Accordingly, October 11, 2005 is the date of the claim. See Rating Decision, January 2007; 38 C.F.R. § 3.157 (2005). Date Entitlement Arose The Board must next determine when entitlement arose for assignment of a 40 percent disability rating for his lumbar spine and service connection for LLE neuralgia. In this regard, a 40 percent rating for a lumbar spine disability is assigned when range of motion testing shows forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Note 1 of the General Rating Formula for Diseases and Injuries of the Spine instructs evaluations may be separately assigned for neurologic abnormalities associated with the service-connected spine disability, such as the Veteran's LLE neuralgia. See Id. at Note (1). Here, medical records contained within the Veteran's claim for Social Security Administration (SSA) benefits show the Veteran had back pain with a question of an episode of L4 radiculopathy in June 1998 and that a magnetic resonance imaging (MRI) scan from the same date showed "degenerative changes at L4-L5 without significant compression on the thecal sac," which logically means there was at least some compression of the thecal sac shown by this MRI. The Veteran was assessed as having mechanical low back pain with some radicular symptoms in the setting of a normal neurologic exam. VA Treatment records from March 2003 note no radiculopathy. The Veteran attended a VA examination in March 2005. At the examination, he complained of lower back pain in the L3 region and pain radiating down both of his legs with some tingling and numbness. He reported flare ups once a month. On physical examination, his ranges of motion were measured as flexion to 40 degrees and extension to 10 degrees with "pain throughout," and left and right partitions to 5 degrees due to pain, fatigability, and incoordination. Left and right lateral rotations were also limited to 10 degrees, with "pain throughout the entire rotation of the lumbar spine." Physical examination also revealed pain and muscle spasms at the L4 region of the back. The examiner noted that the Veteran was "grimacing and grunting and sweating with pain throughout the lumbar examination. At the end of the examination, [the Veteran] could not bend down to put on [his] shoes." Under "Diagnostics," the examiner remarked "none needed since has service connection for degenerative joint disease." Medical records from April 2005 show the Veteran complaining of pain in the center of his back that was non-radiating. VA treatment records from May 2006 include MRI results that detailed facet hypertrophy particularly pronounced at the L4-L5 and L5-S1 vertebrae, as well as a small posterior disc herniation at L5-S1 that appeared to displace the left S1 nerve sleeve posteriorly. Later in May 2006, the Veteran sought private treatment and was diagnosed with acute thoracolumbar radiculopathy with complaints of left leg weakness. The clinical history at a privately completed MRI at the end of May 2006 included "pain and numbness in legs. Another MRI was completed, which showed "at the level L5-S1, there is more of a generalized bulging with component of protrusion compressing the nerve root and narrowing the neural foramina laterally on the left side" and "reactive facet disease at all levels." Also at the end of May 2006, the Veteran presented for treatment for back pain with additional pain radiating down his left leg with some numbness in his left foot. He was assessed as having an acute exacerbation of chronic low back pain with left lower extremity radiculopathy. An MRI completed in June 2006 showed L5-S1 nerve root compression. At the time, the Veteran was recommended to see a neurosurgeon. At a November 2006 VA examination, the Veteran reported complaints of pain radiation rarely and stiffness in his spine. He reported flare ups with repetitive, strenuous bending activity. However, the examiner did not address the additional functional loss during flare ups nor following repetitive use over time. In an October 2008 letter to the SSA, the Veteran wrote, "I wear slip on shoes because I can't bend." He also reported an inability to do house or yard work because his "back hurts all the time." At a private assessment in February 2009, a physician recorded that there had been occasional numbness in the back of the Veteran's left thigh. It was also noted that about a year prior, the Veteran had an episode that was diagnosed as "sciatica" that went from his back towards the back of his left knee. The physician further recorded no loss of reflexes nor numbness and tingling in the Veteran's toes. At a November 2009 VA examination, the Veteran reported pain from his lower back that went to both legs and down to his feet. The Veteran further described that the radiating pain to his legs was a constant, continuous dull aching pain from the spine. He denied sharp shooting pain. Private MRI records from July 2010 again show a clinical history of "low back pain with radiculopathy." The Veteran's private and VA treatment records from this date generally continue to include complaints of lower back pain and radiating pain to his left leg that was eventually diagnosed by a private physician in September 2015 as baseline neuropathy. Based on the foregoing, the Board finds the Veteran's lumbar spine disability warrants a 40 percent rating from March 11, 2005, the date entitlement arose for the 40 percent rating, which was within a year of the Veteran's October 11, 2005 claim. Notably, the March 11, 2005 examiner did not note the point at which pain began during range of motion testing, but did note the Veteran experienced pain throughout range of motion testing with the Veteran unable to flex his spine beyond 40 degrees. The examiner also did not estimate additional functional loss in terms of degrees of motion lost following repetitive use over time nor during flare ups, despite the Veteran reporting functional loss in both scenarios. Given that the examination report reflects that the Veteran experienced pain throughout range of motion testing, that he grimaced, grunted, and began sweating due to pain, and that he was unable to bend down to put on his shoes following range of motion testing, the Board finds it reasonable to factually ascertain that the Veteran's lumbar spine more nearly approximated flexion to 30 degrees or less on flare-ups/repeated use from the date of this examination. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); (38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore not be reflected on range-of-motion testing). Therefore, the Veteran's 40 percent disability rating is warranted from this date, March 11, 2005. There is no evidence in the record evincing motion more nearly approximating flexion to 30 degrees or less prior to this date. Moreover, based on the foregoing, the Board finds the Veteran's LLE neuralgia should be service connected from October 11, 2005, the date of the claim that prompted the rating decision that led to the Board's appellate review. In this regard, the Board again notes the?effective date?of a claim for?service connection?will be the date of receipt of the claim or the date entitlement arose, whichever is later.? 38 U.S.C. § 5110?(a), (b);?38 C.F.R. § 3.400?(b). Here, medical evidence shows the Veteran had questionable left lower extremity radiculopathy related to his lumbar spine during service in 1998. In May 2006, such complaints were diagnosed as left lower extremity radiculopathy. The record reflects these complaints are what led to the September 2015 private diagnosis of baseline neuropathy, which was the basis of the Board's September 2017 grant of service connection for the condition. Thus, given the question of a diagnosis of left lower extremity radiculopathy related to his lumbar spine in 1998 with at least some compression of the thecal sac and the May 2006 diagnosis that confirmed the presence of left lower extremity radiculopathy related to the Veteran's lumbar spine, the Board finds entitlement to service connection for LLE neuralgia arose in 1998. As this is prior to the date of the claim, the proper effective date for the grant of service connection is the date of receipt of the claim. Here, that is October 11, 2005. Service connection for LLE neuralgia is granted from this date. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Infante, Peter 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.