HEARING LOSS

J.L. BURROUGHS · 2023 · Case ID: 23012950

MIXED

Summary

The veteran, who served from March 1974 to October 1975, appeals the denial of increased rating for his lumbar spine disability and the effective date for service connection for bilateral lumbar radiculopathy. The Board granted service connection for bilateral hearing loss, finding it was caused by acoustic trauma in service and had continuous symptoms since separation. The Board also granted a 40 percent rating for the lumbar spine disability prior to May 29, 2014, noting the veteran's forward flexion approximated the criteria for this rating, despite VA examiners finding less likely than not nexus. The Board found the VA examiners' opinions inadequate for failing to address threshold shifts in hearing tests and the veteran's credible lay statements about symptom onset. The Board resolved doubt in the veteran's favor for hearing loss, granting service connection. For the lumbar spine, the Board found the veteran's condition did not meet the criteria for a rating higher than 40 percent, as ankylosis or its functional equivalent was not established. The Board also granted an effective date of January 27, 2011, for the secondary service connection of right and left lumbar radiculopathy, as the veteran's symptoms of radiating pain were present since service and associated with the service-connected lumbar spine disability. The case was remanded for readjudication of entitlement to TDIU prior to May 29, 2014, and SMC under 38 U.S.C. § 1114(s) from May 29, 2014, forward.

Rationale

Conceded in-service noise exposure; Credible lay statements regarding symptom onset and continuity; VA examiners' opinions found inadequate for failing to address threshold shifts and lay statements

Special Benefit

TDIU; SMC

Docket No.

14-03 293

Full Decision Text

Citation Nr: 23012950
Decision Date: 03/02/23 Archive Date: 03/02/23

DOCKET NO. 14-03 293
DATE: March 2, 2023

ORDER

Entitlement to service connection for bilateral hearing loss is granted.

Prior to May 29, 2014, a 40 percent rating, but not higher, for a lumbar spine disability, is granted.

Beginning May 29, 2014, a rating higher than 40 percent for a lumbar spine disability, is denied.

An effective date of January 27, 2011, but not earlier, for the grant of service connection for right lumbar radiculopathy is granted.

An effective date of January 27, 2011, but not earlier, for the grant of service connection for left lumbar radiculopathy is granted.

REMANDED

Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to May 29, 2014, is remanded.

Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) on and after May 29, 2014, is remanded.

FINDINGS OF FACT

1. The Veteran's bilateral hearing loss disability was caused by the acoustic trauma he sustained in service and symptoms of bilateral hearing loss have been continuous since service separation.

2. For the entire rating period on appeal, the Veteran's lumbar disability more nearly approximate forward flexion to 30 degrees, but do not meet or more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine or a diagnosis of IVDS with incapacitating episodes of at least six weeks during any 12-months period.

3. The Veteran filed a claim for a lumbar spine disability on January 27, 2011, at the evidence at the time already showed signs and symptoms of right and left lumbar radiculopathy.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral hearing loss disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385.

2. Prior to May 29, 2014, the criteria for a 40 percent rating, but not higher, for a lumbar spine disability are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5242.

3. Beginning May 29, 2014, the criteria for a rating higher than 40 percent for a lumbar spine disability are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.71a, DC 5242.

4. The criteria for an effective date of January 27, 2011, but not earlier, for the grant of service connection for right lumbar radiculopathy are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.156(c), 3.159, 3.400.

5. The criteria for an effective date of January 27, 2011, but not earlier, for the grant of service connection for left lumbar radiculopathy are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.156(c), 3.159, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1974 to October 1975.

This appeal stems from December 2010, October 2011, March 2013, and June 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

In October 2019, the Board reopened a service connection claim for bilateral hearing loss, granted a TDIU from May 29, 2014, to June 25, 2014, and remanded service connection for bilateral peripheral neuropathy, increased
3.151, 3.155, 3.156(c), 3.159, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1974 to October 1975.

This appeal stems from December 2010, October 2011, March 2013, and June 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

A subsequent October 2020 order of the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR) vacating the portion of the October 2019 Board decision which denied special monthly compensation at the housebound rate under 38 U.S.C. § 1114(s) on and after May 29, 2014 and remanded the issue for further development. The Board remanded the matter in August 2021 as inextricably intertwined with the other issues on appeal.

In June 2022, the Board remanded the appeal for an additional time. Subsequently, by a December 2022 rating decision, the RO granted service connection for bilateral lower extremity peripheral neuropathy and rated it along with the service-connected bilateral lumbar radiculopathy. This is considered a full grant of the benefits sought on appeal, and as such, this issue is no longer in appellate status.

Service Connection for Bilateral Hearing Loss

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).

Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).

Sensorineural hearing loss is considered a "chronic" organic disease of the nervous system under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic diseases in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b).

If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic' disease became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307.

The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki,
within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307.

The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34.

A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

Analysis

The Veteran in this case asserts that his bilateral hearing loss resulted from acoustic trauma sustained in service.

For VA compensation purposes, impaired hearing is considered a disability if: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.

The Veteran in this case is currently diagnosed with a bilateral sensorineural hearing loss disability per VA regulation. See September 2021 audiology examination report.

Regarding the second element of in-service incurrence, the Veteran's exposure to hazardous noise has been conceded. In this regard, the Veteran was a combat engineer and exposed to noise from explosions and small firearms.

Next, with respect to the issue of nexus, the Board finds the evidence at least in equipoise as to whether the Veteran's hearing difficulty had its onset during service.

Service treatment records showed a significant threshold shift in the 1000 Hertz for the left ear and other threshold shifts in the 2000 and 4000 Hertz, bilaterally.

In his original August 1990 claim for compensation, the Veteran stated that his bilateral hearing loss began in 1975.

During an October 1997 ear disease examination, the Veteran reported that he had recurrent left ear discharge and hearing loss. During a general medical examination, he stated that he was diagnosed with diminished hearing at the time of discharge from service.

In an October 2009 statement in support of claim, the Veteran stated that his condition began in service and gradually worsened since that time.

In a November 2010 statement in support of claim, the Veteran again stated that his difficulty hearing was continuous since separation from service.

In a December 2010 opinion, a VA examiner opined that the diagnosed bilateral hearing loss was less likely than not related to the conceded exposure to hazardous noise during service. The examiner reasoned that the Veteran did not complain of hearing loss until 2009, decades after separation from service.

In an August 2022 opinion, the examiner opined that the bilateral hearing loss was less likely than not related to service. This examiner again reasoned that hearing loss was not diagnosed until 2009.

On review, the Board resolves all doubt in the Veteran's favor in finding that his bilateral hearing loss had its onset during active-duty service and has been continuous since that time. Throughout the pendency of the appeal, the Veteran specifically and consistently indicated that he first noticed hearing difficulty during service and that it has been continuous since separation from service. While the Veteran's separation examination showed normal hearing for VA purposes, the Board notes that the guidelines of the National Institute for Occupational Safety and Health (NIOSH) indicates that a significant threshold shift is 15 decibels or more, which in this case, was shown at the 1000 Hz in the left ear. While no significant threshold shift was shown in other frequencies, a 10 decibels shift was shown in the 1000 and 4000 Hertz, bilaterally. The Board finds the VA examiners' opinions inadequate since all examiners failed to address this threshold shift or the Veteran's competent reports as to the onset of his symptoms. The Veteran, as a layperson, is competent to report observing a decline in his hearing acuity, both during and ever since service, because he witnesses such difficulty first-hand. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board does not doubt the credibility of his consistent statements that his hearing difficulty began during service and continued thereafter. Therefore, the Board finds the Veteran's statements that his current hearing loss disability began in service and has been continuous since service to be credible and highly probative.

Thus, in light of the current diagnoses of bilateral hearing loss disability for VA purposes, the conceded in-service noise exposure, and the competent and credible lay evidence of continuity of symptomatology since service, the criteria to establish service connection for bilateral hearing loss on a presumptive basis are met, and the claim is granted.

Increased Rating Applicable Laws and Regulations

Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1.

When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where the veteran is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

When evaluating musculoskeletal disabilities based on limitation of motion, 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. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (
-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Here, the Veteran's lumbar spine degenerative arthritis is rated under 38 C.F.R. § 4.71a, DC 5242 as degenerative disc disease with strain and spondylosis. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021, and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine 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.

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F
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.

A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is 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. Id.

A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 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 disability rating is assigned for unfavorable ankylosis of entire spine.

The rating criteria provide that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5).

The Court has held that a veteran may be entitled to a rating under the General Rating Formula if he experiences the functional equivalent of ankylosis when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021).

Intervertebral disc syndrome can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula).

Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1).

On February 7, 2021, amendments to the schedule for rating disabilities of the musculoskeletal system, including DC 5242 for degenerative arthritis and DC 5243 for IVDS, went into effect. See 85 Fed. Reg. 76460 (November 30, 2020). The amendment to DC 5242 clarifies that the rating criteria is to be applied for other than IVDS. The amendment to DC 5243 for IVDS specifies that it is to be applied only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Id.

Evidence and Analysis

In January 2013, the Veteran underwent a VA back examination, at which time the examiner confirmed diagnoses of lumbar spondylosis, degenerative disc disease, and
the musculoskeletal system, including DC 5242 for degenerative arthritis and DC 5243 for IVDS, went into effect. See 85 Fed. Reg. 76460 (November 30, 2020). The amendment to DC 5242 clarifies that the rating criteria is to be applied for other than IVDS. The amendment to DC 5243 for IVDS specifies that it is to be applied only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Id.

Evidence and Analysis

In January 2013, the Veteran underwent a VA back examination, at which time the examiner confirmed diagnoses of lumbar spondylosis, degenerative disc disease, and lumbar radiculitis. The Veteran reported more frequent flare-ups with constant dull pain that was between 5 and 8-9 out of 10 in severity. The flare-ups occurred six to eights time a year and required bed rest and medications. Some of these episodes lasted approximately four weeks. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 40 degrees, extension to 15 degrees, lateral flexion to 20 degrees, bilaterally, and lateral rotation to 20 degrees, bilaterally. The examiner did not estimate any additional loss after repeated use over time and/or during flare-ups.

In May 2014, the Veteran underwent another VA examination, at which time the examiner rendered diagnoses of degenerative arthritis of the spine, lumbar strain, and lumbar spondylosis. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 30 degrees with pain at 5 degrees, extension to 15 degrees, lateral flexion to 15 degrees, bilaterally, right lateral rotation to 20 degrees, and left lateral rotation to 15 degrees. There was no ankylosis or IVDS.

During an August 2021 examination, the Veteran reported that his condition improved. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 45 degrees, extension to 20 degrees, lateral flexion to 20 degrees, bilaterally, and lateral rotation to 20 degrees, bilaterally. The examiner did not estimate any additional loss after repeated use over time and/or during flare-ups. Repetitive use testing was not performed to avoid injury.

The Veteran was unable to attend an additional examination due to his dementia. The Board finds that additional attempts to schedule the Veteran for an examination will be futile.

Prior to May 29, 2014

On review, the Board resolves all doubt in the Veteran's favor in finding that for the entire rating period on appeal, forward flexion of the lumbar spine approximated the criteria for a 40 percent rating. In this regard, already in 2013, the forward flexion was to 40 degrees with pain. At the time, the examiner did not estimate any additional loss of motion after repeated use over time and/or during flare-ups. Given the totality of the evidence, the Board finds that forward flexion to 30 degrees is therefore approximated.

Beginning May 29, 2014

A rating higher than 40 percent is not warranted during this rating period on appeal.

Under the General Rating Formula based on limitation of motion, unfavorable ankylosis of the entire lumbar spine is not approximated. In this regard, in order for the Veteran to receive a higher rating, there needs to be evidence of unfavorable ankylosis of the entire lumbar spine. In Chavis v. McDonough, 34 Vet. App. 1, 1-2 (2021), the Court held that evidence of the functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis, specifically a rating higher than 40 percent for the lumbar spine. Here, the maximum rating for limitation of motion of the lumbar spine is 40 percent but pursuant to Chavis the Board must consider whether there is evidence of the functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis.

As noted above, the Veteran's forward flexion range of motion was limited to, at worse, 30 degrees. The Veteran also experienced pain, which is contemplated by the 40 percent rating. However, as the medical evidence does not show, and the Veteran has not asserted otherwise, the presence of ankylosis of the entire lumbar spine, a rating of 50
of motion of the lumbar spine is 40 percent but pursuant to Chavis the Board must consider whether there is evidence of the functional equivalent of ankylosis during flare-ups, pursuant to 38 C.F.R. § 4.40 and 4.45, can satisfy the criteria for a rating based on ankylosis.

As noted above, the Veteran's forward flexion range of motion was limited to, at worse, 30 degrees. The Veteran also experienced pain, which is contemplated by the 40 percent rating. However, as the medical evidence does not show, and the Veteran has not asserted otherwise, the presence of ankylosis of the entire lumbar spine, a rating of 50 percent is not warranted, even with consideration of the functional impairment resulting from pain and other such factors. In addition, the Board finds that the lay evidence likewise does not show that the Veteran's lumbar spine disability is productive of the functional equivalent of ankylosis, namely, lack of any movement of the lumbar spine. Even considering flare-ups and repeated use over time, ankylosis of the entire lumbar spine is not approximated.

Regarding IVDS, the record is void for a diagnosis of IVDS at any point during the pendency of the claim. In addition, although the Veteran reported that he required bedrest during flare-ups, a review of the medical evidence does not show any prescribed bed rest by a physician as required by the rating criteria for IVDS. The Board recognizes that the Veteran is competent to describe symptoms that are known to him; however, neither bed rest prescribed by a physician, nor the claimed periods of incapacitation are shown in, or referenced by, private or VA treatment records during the pendency of the appeal. The Board assigns more probative value to the Veteran's medical records made for treatment purposes than to subsequent statements made for compensation purposes. Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Nevertheless, as noted, a diagnosis of IVDS is not present in this case. Accordingly, a rating higher than 40 percent is not warranted.

In addition to consideration of the orthopedic manifestations of the lumbar spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DCs 5235 to 5243, Note (1). Here, the Veteran is in receipt of separate ratings for right and left lumbar radiculopathy. He has not expressed disagreement with the assigned ratings.

Earlier Effective Date for Right and Left Lumbar Radiculopathy

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 broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). With respect to informal claims, the Board recognizes that this case predates the March 2015 changes to 38 C.F.R. § 3.155, and as such, the older version of the regulation applies.

Under the former § 3.155, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA may constitute an informal claim, provided that such informal claim identifies the benefit sought. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claim file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

Analysis

VA received the Veteran's claim for a back disability on January 27, 2011. During the May 2011 VA back examination, the examiner noted that the Veteran reported radiating pain to the lower extremities that was described as "a shocklike fashion." The Veteran specifically claimed having felt symptoms of what he described as neuropathy in June 2011 and although a formal diagnosis was not rendered until the January 2013 examination, the evidence
To determine when a claim was received, the Board must review all communications in the claim file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

Analysis

VA received the Veteran's claim for a back disability on January 27, 2011. During the May 2011 VA back examination, the examiner noted that the Veteran reported radiating pain to the lower extremities that was described as "a shocklike fashion." The Veteran specifically claimed having felt symptoms of what he described as neuropathy in June 2011 and although a formal diagnosis was not rendered until the January 2013 examination, the evidence clearly shows symptomatology of radiating pain due to the already service-connected lumbar spine disability.

Based on this evidence, the Board finds that an effective date of January 27, 2011, for the grant of secondary service connection for bilateral lumbar radiculopathy associated with the lumbar spine disability, is warranted.

This is the earliest effective date available under the law for the right and left lumbar radiculopathy. A secondary service-connected disability cannot have an effective date earlier than the underlying disability because entitlement to secondary service connection does not arise until the underlying disability is service connected. See 38 C.F.R. §§ 3.310, 3.400. As the lumbar radiculopathy was granted on a secondary basis as associated with the lumbar spine disability, it cannot have an effective date earlier than the lumbar spine disability, even if it manifested earlier.

To sum, the Board assigns an effective date of January 27, 2011, but not earlier, for the grant of service connection for right and left lumbar radiculopathy.

REASONS FOR REMAND

A remand is necessary for the RO to implement the Board's decision herein and readjudicate the issue of entitlement to a TDIU prior to May 29, 2014, and entitlement to SMC under 38 U.S.C. § 1114(s) from May 29, 2014, forward.

The matters are REMANDED for the following action:

1. Implement the Board's decision herein granting a 40 percent rating for a lumbar spine disability prior to May 29, 2014, and an effective date of January 27, 2011 for the right and left lumbar radiculopathy.

2. Thereafter, conduct any other development deemed necessary and readjudicate the issue of entitlement to a TDIU prior to May 29, 2014, and entitlement to SMC under 38 U.S.C. § 1114(s) from May 29, 2014, forward. If the Veteran does not meet the schedular criteria for a TDIU for the entire rating period on appeal, refer the claim to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b).

J.L. BURROUGHS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Yaffe, 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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