Case 24005198

KRISTIN HADDOCK · 2024 · Case ID: 24005198

MIXED

Summary

The veteran, who served from December 1975 to December 1978, appeals the denial of earlier effective dates for service connection for right and left lower extremity radiculopathy and lumbar scar, as well as increased ratings for these conditions. The Board reviewed the evidence and found that the veteran's intent to file on October 22, 2018, preserved the effective date for claims filed shortly thereafter, including for radiculopathy and lumbar scar, making the claim for an earlier date unwarranted. For the radiculopathy claims, the Board reviewed multiple VA examinations from December 2018 through March 2020, noting the veteran's symptoms of pain, paresthesias, numbness, gait imbalance, and falling. While examiners determined moderate incomplete paralysis, the Board found the evidence did not support severe paralysis or marked muscular atrophy, and that VAMC records indicated some impairment was due to non-service-connected conditions. Consequently, the Board granted a 40 percent rating for right and left lower extremity radiculopathy (sciatic nerve) and a 20 percent rating for right lower extremity radiculopathy (femoral nerve) prior to March 3, 2020. The Board denied higher ratings for the femoral nerve and any compensable rating for the lumbar scar, finding the scar non-painful and without disabling effects. The case was remanded for further development regarding the back disability, specifically to clarify ankylosis and intervertebral disc syndrome findings from prior examinations and to re-evaluate the increased rating claim and its effective date.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

20-22 729

Full Decision Text

Citation Nr: 24005198
Decision Date: 02/01/24 Archive Date: 02/01/24

DOCKET NO. 20-22 729
DATE: February 1, 2024

ORDER

Entitlement to an effective date earlier than October 22, 2018, for the grant of entitlement to service connection for radiculopathy (sciatic nerve), right lower extremity, is denied.

Entitlement to an effective date earlier than October 22, 2018, for the grant of entitlement to service connection for radiculopathy (femoral nerve), left lower extremity, is denied.

Entitlement to an effective date earlier than October 22, 2018, for the grant of entitlement to service connection for lumbar scar is denied.

Entitlement to an effective date earlier than February 4, 2019, for the grant of entitlement to service connection for radiculopathy (femoral nerve), right lower extremity, is denied.

Entitlement to an initial 40 percent rating, but not higher, for radiculopathy (sciatic nerve), right lower extremity, is granted.

Entitlement to a 40 percent rating, but not higher, for radiculopathy (sciatic nerve), left lower extremity, is granted.

Entitlement to an initial 20 percent rating, but not higher, prior to March 3, 2020, for radiculopathy (femoral nerve), right lower extremity, is granted.

Entitlement to a rating in excess of 20 percent beginning March 3, 2020, for radiculopathy (femoral nerve), right lower extremity, is denied.

Entitlement to an initial rating in excess of 20 percent for radiculopathy (femoral nerve), left lower extremity, is denied.

Entitlement to an initial compensable rating for lumbar scar is denied.

REMANDED

Entitlement to a rating in excess of 20 percent prior to February 4, 2019, and in excess of 40 percent thereafter, for lumbar spine spondylolisthesis with retrolisthesis, degenerative disc disease, and arthritis with spurring s/p fusion (back disability) is remanded.

Entitlement to an effective date earlier than October 22, 2018, for the assignment of a 20 percent rating for service-connected back disability is remanded.

Entitlement to an effective date earlier than February 4, 2019, for the assignment of a 40 percent rating for service-connected back disability is remanded.

FINDINGS OF FACT

1. The Veteran submitted an intent to file a claim on October 22, 2018, which preserved the effective date of his secondary service connection claims for right lower extremity radiculopathy (sciatic nerve), left lower extremity radiculopathy (femoral nerve), and lumbar scar.

2. The Veteran submitted an intent to file a claim on February 4, 2019, which preserved the effective date of his secondary service connection claim for right lower extremity radiculopathy (femoral nerve).

3. Throughout the appeal period, the Veteran's right and left lower extremity radiculopathy (sciatic nerve) were productive of symptoms that were moderately severe.

4. Throughout the appeal period, the Veteran's right and left lower extremity radiculopathy (femoral nerve) were productive of symptoms that were moderate.

5. Throughout the appeal period, the Veteran's lumbar scar was shown to nonpainful, stable, and not associated with underlying soft tissue damage.

CONCLUSIONS OF LAW

1. The criteria for an effective date earlier than October 22, 2018, for the grant of entitlement to service connection for radiculopathy (sciatic nerve), right lower extremity, have not been met. 38 U.S.C. § 5110 (2018); 38 C.F.R. §§ 3.155, 3.400 (2022).

2. The criteria for an effective date earlier than October 22, 2018, for the grant of entitlement to service connection for radiculopathy (femoral nerve), left lower extremity, have not been met. 38 U.S.C. § 5110 (2018); 38 C.F.R. §§ 3.155, 3.400 (2022).

3. The criteria for an effective date earlier than October 22, 2018, for the grant of entitlement to service connection for lumbar scar have not been met. 38 U.S.C. § 5110 (2018); 38 C.F.R. §§ 3.155, 3.400 (2022).

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criteria for an effective date earlier than October 22, 2018, for the grant of entitlement to service connection for radiculopathy (femoral nerve), left lower extremity, have not been met. 38 U.S.C. § 5110 (2018); 38 C.F.R. §§ 3.155, 3.400 (2022).

4. The criteria for an effective date earlier than February 4, 2019, for the grant of entitlement to service connection for radiculopathy (femoral nerve), right lower extremity, have not been met. 38 U.S.C. § 5110 (2018); 38 C.F.R. §§ 3.155, 3.400 (2022).

5. The criteria for an initial 40 percent rating, but not higher, for radiculopathy (sciatic nerve), right lower extremity, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2022).

6. The criteria for a 40 percent rating, but not higher, for radiculopathy (sciatic nerve), left lower extremity, have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2022).

7. The criteria for an initial 20 percent rating, but not higher, prior to March 3, 2020, for radiculopathy (femoral nerve), right lower extremity, have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8526 (2022).

8. The criteria for a rating in excess of 20 percent beginning March 3, 2020, for radiculopathy (femoral nerve), right lower extremity, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8526 (2022).

9. The criteria for an initial 20 percent rating for radiculopathy (femoral nerve), left lower extremity, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8526 (2022).

10. The criteria for an initial compensable rating for lumbar scar have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2022).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from December 1975 to December 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision issued by the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ).

Effective Date - Service Connection

1. Right Lower Extremity Radiculopathy (Sciatic Nerve) and Left Lower Extremity Radiculopathy (Femoral Nerve)

The Veteran contends that he should be granted an effective date earlier than October 22, 2018, for the grants of entitlement to service connection for right lower extremity radiculopathy (sciatic nerve) and left lower extremity radiculopathy (femoral nerve).

The Board has thoroughly reviewed the evidence of record prior to October 22, 2018, to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a claim for service connection during that time. The record shows that the Veteran submitted an intent to file a claim on October 22, 2018. Subsequently, the Veteran filed an increased rating claim for service-connected back disability, to include any secondary left and/or right leg conditions, on October 23, 2018. The Board notes that any increased rating claim for a back disability reasonably includes a claim of entitlement to service connection for any associated objective neurologic abnormalities. 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine, Note (1). In December 2018, a VA examiner indicated that the Veteran had right lower extremity radiculopathy (sciatic nerve) and left lower extremity radiculopathy (femoral nerve). As the Veteran's claims were filed within one year of the intent to file, the Veteran preserved the earlier date the intent to file was received. 38 C.F.R. § 3.155(b). Further, the Board finds that the record does not contain any evidence of any intent to file or actual claim for the Veteran's claimed conditions prior to October 22, 2018.

Accordingly, the Board notes that the accurate effective date would be October 22, 2018, which is the later of the preserved date of claim and the date entitlement arose. Therefore, the claim for an earlier effective date is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, the Board finds that earlier effective dates for the grants of entitlement to service connection for right lower extremity radiculopathy (sciatic nerve) and left lower extremity radiculopathy (femoral nerve) are not warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

2. Lumbar Scar

The Veteran claims that he should be granted an effective date earlier than October 22, 2018, for the grant of entitlement to service connection for lumbar scar.

Accordingly, the Board notes that the accurate effective date would be October 22, 2018, which is the later of the preserved date of claim and the date entitlement arose. Therefore, the claim for an earlier effective date is without legal merit. Sabonis, 6 Vet. App. 426. As such, the Board finds that an earlier effective date for the grant of entitlement to service connection for right lower extremity radiculopathy (femoral nerve) is not warranted. 38 U.S.C. § 5107(b); Lynch, 21 F.4th 776.

3. Right Lower Extremity Radiculopathy (Femoral Nerve)

The Veteran asserts that he should be granted an effective date earlier than February 4, 2019, for the grant of entitlement to service connection for right lower extremity radiculopathy (femoral nerve).

The Board has thoroughly reviewed the evidence of record prior to February 4, 2019, to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a claim for service connection during that time. The record shows that the Veteran submitted a second intent to file a claim on February 4, 2019. Subsequently, the Veteran filed a claim for entitlement to a total disability rating based on individual unemployability (TDIU), to include a claim for increased rating, on March 26, 2019. As discussed above, an increased rating claim for a back disability reasonably includes a claim of entitlement to service connection for radiculopathy. 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine, Note (1). In May 2019, a VA examiner indicated that the Veteran had right lower extremity radiculopathy (femoral nerve). As the Veteran's claim was filed within one year of the intent to file, the Veteran preserved the earlier date the intent to file was received. 38 C.F.R. § 3.155(b) (2018).

The Board acknowledges that the Veteran filed his TDIU/increased rating claim within one year of submitting his first intent to file on October 22, 2018. However, when VA receives an intent to file followed by a complete claim and later another intent to file for the same benefit is submitted within one year of the previous intent to file, VA will recognize the subsequent intent to file to establish an effective date for any award granted for the next complete claim, provided it is received within one year of the subsequent intent to file. 38 C.F.R. § 3.155(b)(6).

Accordingly, the Board notes that the accurate effective date would be February 4, 2019, which is the later of the preserved date of claim and the date entitlement arose. Therefore, the claim for an earlier effective date is without legal merit. Sabonis, 6 Vet. App. 426. As such, the Board finds that an earlier effective date for the grant of entitlement to service connection for right lower extremity radiculopathy (femoral nerve) is not warranted. 38 U.S.C. § 5107(b); Lynch, 21 F.4th 776.

Increased Rating

1. Right and Left Lower Extremity Radiculopathy (Sciatic and Femoral Nerves)

The Veteran asserted that his right and left lower extremity radiculopathy (sciatic and femoral nerves) is worse than that contemplated by the currently assigned ratings. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

In December 2018, the Veteran was afforded VA examinations for back and peripheral nerve conditions. He reported tingling and numbness in both legs. He stated that he possibly fell at home once a week because of weakness in both legs (and usually preceded by tingling). The examiner indicated that the Veteran had mild pain, moderate paresthesias/dysesthesias, and mild numbness, bilaterally. Deep tendon reflexes (DTRs) were hypoactive in his knee and ankle, bilaterally. Light touch was decreased in his left thigh/knee, bilateral leg/ankle, and bilateral foot/toes. His left straight leg raising test result was positive. He ambulated slowly and regularly used a cane. The examiner indicated that the Veteran's radiculopathy impacted his ability to work. The examiner did not recommend any job that required prolonged standing or walking. The examiner determined that the Veteran had moderate, incomplete paralysis involving the sciatic nerve, right and left lower extremities, and mild, incomplete paralysis involving the femoral nerve, left lower extremity.

In May 2019, the Veteran underwent a VA examination for peripheral nerve conditions followed by an addendum VA medical opinion in August 2019. He reported intermittent and/or dull pain and occasional loss of feeling in his right and left legs. His symptoms were alleviated with lying down, bending, or changing positions. He added that his legs were aggravated constantly, and he had been falling for almost a year. The examiner indicated that the Veteran had mild to moderate pain, moderate paresthesias/dysesthesias, and mild numbness, bilaterally. DTRs were hypoactive in his knee and ankle, bilaterally. Light touch was decreased in his left thigh/knee and foot/toes, and right leg/ankle. The examiner found trophic changes. The Veteran had an antalgic gait and constantly used a cane. The examiner indicated that the Veteran's radiculopathy impacted his ability to work due to standing and needing to change positions. The examiner determined that the Veteran had mild, incomplete paralysis involving the sciatic and femoral nerves, right and left lower extremities.

In June 2019, the Veteran had a VA examination for back conditions. He reported numbness and weakness in both legs and falling due to leg weakness. He regularly used a cane. The examiner indicated that the Veteran had severe left lower extremity pain, moderate bilateral paresthesias/dysesthesias, mild right lower extremity numbness, and moderate left lower extremity numbness. Muscle strength was reduced with left great toe extension. DTRs were absent in his ankle, bilaterally. Light touch was decreased in his left leg/ankle and foot/toes. Additionally, the examiner commented that there was a decrease in pin sensation to the left calf and foot. The examiner determined that the Veteran had mild, incomplete paralysis involving the sciatic nerve, right and left lower extremities.

In March 2020, the Veteran was provided an additional VA examination for back conditions. He reported radiating pain, tingling, pinching, and numbness, left greater than right lower leg. He regularly used a cane. The examiner indicated that the Veteran had moderate pain, moderate paresthesias/dysesthesias, and mild numbness, bilaterally. Additionally, the examiner determined that the Veteran had moderate, incomplete paralysis involving the sciatic and femoral nerves, right and left lower extremities.

A review of the Veteran's VA medical center (VAMC) records reflected that he had a history of a gait imbalance and falling due to a nonservice-connected vestibular disability and/or stroke. However, there is no indication from the record that the Veteran's symptoms were manifestly different than those already described above.

Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran is entitled to higher ratings for right and left lower extremity radiculopathy (sciatic and femoral nerves). Absent an express definition, the terms "slight," "moderate," and "severe" incomplete paralysis of the nerves are generally defined as "small in kind or amount," "tending toward the mean or average amount," and "of a great degree," respectively. Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/ (last visited March 3, 2023). Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2022). In this regard, the Veteran's symptomatology demonstrated more than wholly sensory findings at a moderate to moderately severe level of severity. Throughout the appeal period, the Veteran experienced hypoactive or absent DTRs in the knees and/or ankles, a positive left straight leg raise, abnormal gait, and falling. 38 C.F.R. § 4.124a, Diagnostic Codes 8520 and 8526.

The Board has considered assigning higher ratings for radiculopathy (sciatic and femoral nerves), right and left lower extremities. However, there is no lay or medical evidence of record that the Veteran has severe incomplete paralysis, to include marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Codes 8520 and 8526. VA examiners determined that the Veteran's symptomatology was no more than moderate. Moreover, VAMC records support that any additional impairment of the Veteran's right and left lower extremities was due to nonservice-connected disabilities. 38 C.F.R. § 4.124a.

Accordingly, a
8520 and 8526.

Accordingly, a 40 percent rating for right and left lower extremity radiculopathy (sciatic nerve) is warranted for the entire appeal period. Further, an initial 20 percent rating for right lower extremity radiculopathy (femoral nerve) is warranted prior to March 3, 2020. However, beginning March 3, 2020, a rating in excess of 20 percent for right lower extremity radiculopathy (femoral nerve), is not warranted. Additionally, an initial rating in excess of 20 percent for left lower extremity radiculopathy (femoral nerve) is not warranted for the entire appeal period. 38 U.S.C. § 5107(b); Lynch, 21 F.4th 776.

2. Lumbar Scar

The Veteran contends that his lumbar scar is worse than that contemplated by the currently assigned noncompensable (0 percent) rating. 38 C.F.R. § 4.118, Diagnostic Code 7804.

In March 2020, the Veteran was afforded a VA examination. The examiner observed that the Veteran had one vertical scar in the mid lumbar area. It covered 1.85 square (sq.) centimeters (cm.). The examiner indicated that the scar was non-painful, stable, and without underlying tissue damage.

Based on the foregoing evidence, the Board finds that the Veteran is not entitled to a higher compensable rating. In this regard, the Veteran has one scar of the right knee. There is no evidence that the Veteran's scar that is unstable, associated with underlying soft tissue damage, or has an area of at least 144 sq. inches (929 sq. cm.). Furthermore, the Veteran has not alleged, nor does the evidence suggest, that his lumbar scar results in any disabling effects. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804 and 7805.

Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to an initial compensable rating for lumbar scar is not warranted. 38 U.S.C. § 5107(b); Lynch, 21 F.4th 776.

REASONS FOR REMAND

The Board finds that additional development is required before the remaining claims on appeal are decided.

The Veteran was last afforded a VA examination for his back disability in March 2020. However, the Board finds that the VA examination is inadequate for rating purposes. In this regard, the examiner indicated that the Veteran did not have ankylosis or intervertebral disc syndrome (IVDS) without addressing a prior VA examiner's finding of favorable ankylosis and non-incapacitating IVDS in December 2018. The board take notice that a VA MRI conducted in October 2018 revealed that the Veteran had solid degenerative ankylosis at T11-12 and T12-L1. Furthermore, the Veteran reported that he has impaired flexibility and maneuverability at his last VA examination in March 2020. Therefore, the Board finds that the Veteran should be provided an additional VA examination to determine the current level of severity of all impairment resulting from his service-connected back disability.

Additionally, the Board finds that the issue of entitlement to an earlier effective date for the assignment of an increased rating for service-connected back disability is inextricably intertwined with the increase rating claim remanded herein. Therefore, adjudication of those issues must be deferred. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

The matters are REMANDED for the following action:

1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file.

2. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected back disability. The claims file must be made available to and reviewed by the
Board finds that the issue of entitlement to an earlier effective date for the assignment of an increased rating for service-connected back disability is inextricably intertwined with the increase rating claim remanded herein. Therefore, adjudication of those issues must be deferred. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

The matters are REMANDED for the following action:

1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file.

2. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected back disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes, to include any findings of ankylosis and/or IVDS as reflected in a prior VA examination report in December 2018 and MRI results in October 2018.

3. Confirm the VA examinations and medical opinions provided comport with this remand and undertake any other development determined to be warranted.

4. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board.

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board D. Ware, 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.

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