Case A26031685

Summary

The veteran, who served in the U.S. Army from September 1978 to January 1982, appeals the denial of an earlier effective date for service connection for right lower extremity sciatic radiculopathy and the denial of an increased rating for this condition. The veteran sought an earlier effective date prior to June 17, 2020, and an increased rating beyond the existing 10 percent for his service-connected back disability, which the AOJ found encompassed the radiculopathy claim. The Board reviewed the evidence of record at the time of the August 2020 rating decision, noting that the veteran waived his right to a second hearing. The Board found that the veteran's right lower extremity sciatic radiculopathy was not diagnosed until June 17, 2020, and prior examinations were negative for radiculopathy symptoms. Therefore, the Board denied an earlier effective date. For the increased rating, the Board considered the VA examination from June 2020, which diagnosed right lower extremity radiculopathy as a progression of the service-connected lumbar strain. The examiner found normal motor strength, sensation, and reflexes, with no muscle atrophy or complete paralysis. A positive straight leg raising test on the right indicated moderate intermittent pain and mild paresthesias, but no constant pain. The Board concluded this constituted mild incomplete paralysis, primarily sensory, which warranted only a 10 percent rating. The Board found the evidence weighed against a higher rating, and thus denied the increased rating claim.

Rationale

No evidence of radiculopathy prior to June 17, 2020.; Prior examinations were negative for radiculopathy symptoms.; Effective date for secondary condition is date entitlement arose, not date of underlying condition.

Full Decision Text

Citation Nr: A26031685
Decision Date: 04/07/26	Archive Date: 04/07/26

DOCKET NO. 200922-110501
DATE: April 7, 2026

ORDER

Entitlement to an earlier effective date, prior to June 17, 2020, for an award of service connection for right lower extremity sciatic radiculopathy, is denied.

Entitlement to an initial rating in excess of 10 percent for right lower extremity sciatic radiculopathy is denied.

FINDINGS OF FACT

1. Entitling criteria for service connection of right sciatic radiculopathy arose on June 17, 2020, but not earlier.

2. The Veteran's sciatic nerve radiculopathy manifested by no more than mild incomplete paralysis of the right lower extremity.

CONCLUSIONS OF LAW

1. The criteria for an earlier effective date, prior to June 17, 2020, for an award of service connection for right lower extremity sciatic radiculopathy, were not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.155, 3.400, 3.2500.

2. The criteria for an initial disability rating in excess of 10 percent for right lower extremity sciatic radiculopathy were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Army from September 1978 to January 1982.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2020 rating decision issued by the Agency of Original Jurisdiction (AOJ), a Department of Veterans Affairs (VA) Regional Office (RO).

In the September 22, 2020, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. 

A Board hearing was held on May 13, 2024, before the undersigned Veterans Law Judge (VLJ). Unfortunately, due to the recording being inaudible/unavailable, a transcript of that proceeding cannot be added to the record. On June 5, 2024, the Board sent a letter to the Veteran offering a new hearing so that his testimony could be added to the record. The letter informed him that if he did not reply within 30 days, the Board would assume he did not want a second hearing. More than 30 days have passed since the letter was mailed. It was not returned as undeliverable, and no response has been received. Consequently, the Board finds that the Veteran has waived his right to a second hearing in this case.

Therefore, the Board may only consider the evidence of record at the time of the August 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran [or representative] at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, he may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision.

Notably, in the decision on appeal, the AOJ found that a claim for right lower extremity radiculopathy was within the scope of the Veteran's increased rating claim for his service-connected back disability. See Rating Decision Notification, dated Aug. 27, 2020. To the extent that it is bound by this favorable finding, the Board will review the procedural history of this case through that lens. 38 C.F.R. § 20.802(a).

Procedural History

On December 22, 2010, the Veteran filed an original claim seeking entitlement to service connection for a back condition. On October 25, 2011, the AOJ
 for filing a supplemental claim are included with this decision.

Notably, in the decision on appeal, the AOJ found that a claim for right lower extremity radiculopathy was within the scope of the Veteran's increased rating claim for his service-connected back disability. See Rating Decision Notification, dated Aug. 27, 2020. To the extent that it is bound by this favorable finding, the Board will review the procedural history of this case through that lens. 38 C.F.R. § 20.802(a).

Procedural History

On December 22, 2010, the Veteran filed an original claim seeking entitlement to service connection for a back condition. On October 25, 2011, the AOJ issued a decision, which granted service connection for mild chronic lumbar strain with age related degenerative changes on x-ray (a back disability) and an initial 10 percent disability rating. The effective date assigned was December 23, 2010, "the date we received your claim." The propriety of that decision is not before the Board. The Veteran did not file a substantive appeal and new and material evidence was not received within one year of its issuance. That decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

On January 9, 2013, the Veteran submitted an initial claim for increase, seeking a rating in excess of 10 percent for his back disability. See VA Form 21-0820, Report of General Information ("DATE OF CONTACT...01/09/2013"). On November 29, 2013, the AOJ issued a decision, which denied the claim based on the evidence of record at the time.

On the same day, the Veteran submitted a Notice of Disagreement (NOD) with that decision and elected the Decision Review Officer process to handle the appeal. See Notification Letter, dated May 14, 2014. A statement of the case (SOC) was issued on September 29, 2014. Then, the Veteran filed a timely substantive appeal of all issues listed on the SOC and requested a Board hearing. See VA Form 9, rec'd. Oct. 20, 2014. The appeal was certified to the Board on January 13, 2015, and a Board hearing was held before a VLJ on November 17, 2017. A transcript has been associated with the claims file. On June 19, 2018, the Board remanded the issue of entitlement to an increased rating for a back disability for additional development. 

Additional evidence was associated with the claims file after the issuance of the SOC but prior to certification of the appeal. See 38 C.F.R. §§ 19.31, 19.37. Be that as it may, a supplemental SOC (SSOC) was issued for consideration based on the additional evidence received prior to certification. See SSOC, dated Jul. 18, 2019. After the prescribed period to submit additional evidence had expired, the case was returned to the Board. See VA Form 8, dated Feb. 10, 2020.

On April 2, 2020, the Board issued another decision, which remanded the issue again for additional development. Once more, additional evidence was associated with the claims file after the issuance of the SSOC but prior to certification of the appeal. 38 C.F.R. §§ 19.31, 19.37. Be that as it may, another SSOC was issued for consideration based on the additional evidence received prior to certification. See SSOC, dated Aug. 20, 2020. 

A few days later, the AOJ issued a decision, which granted entitlement to service connection for right lower extremity radiculopathy as secondary to the Veteran's service-connected back disability. An initial 10 percent rating was assigned. The effective date of the award was June 17, 2020, based on facts found during a VA back examination conducted on that date. See Rating Decision Notification, dated Aug. 27, 2020. As discussed above, the AOJ found a claim seeking entitlement to service connection for right lower extremity sciatic radiculopathy within the scope of the increased rating claim for the back disability. The latter remained pending under the legacy system. Id.

This appeal followed.

Benefit of the Doubt

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" (i.e., nearly equal) balance of positive and negative evidence regarding any material determination
0. As discussed above, the AOJ found a claim seeking entitlement to service connection for right lower extremity sciatic radiculopathy within the scope of the increased rating claim for the back disability. The latter remained pending under the legacy system. Id.

This appeal followed.

Benefit of the Doubt

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" (i.e., nearly equal) balance of positive and negative evidence regarding any material determination. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102.

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each, and every piece of evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). That is to say that where the Board is silent as to a specific piece of evidence it must be presumed "that the Board considered this evidence and found it too scant to warrant comment." Robinson v. Peake, 21 Vet. App. 545, 555 (2008). The analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to it. Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Increased Ratings

Disability ratings are determined by application of the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12
 of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).

The appeal period before the Board begins January 9, 2012, the date VA received the Veteran's increased rating claim, which includes the one-year look-back period. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

1. Entitlement to an earlier effective date, prior to June 17, 2020, for an award of service connection for right lower extremity sciatic radiculopathy, is denied.

The Veteran seeks entitlement to an earlier effective date, prior to June 17, 2020, for the award of service connection for right lower extremity radiculopathy as secondary to his service-connected back disability. See VA Form 10182, rec'd. Sept. 22, 2020.

The issue for the Board is whether the Veteran's current right lower extremity sciatic radiculopathy arose prior to June 17, 2020. Stated differently, the issue is whether the evidence of record establishes that entitling criteria for right lower extremity sciatic radiculopathy were met as of the date of receipt of the initial increased rating claim for his service-connected back disability.

In Ross v. Peake, 21 Vet. App. 528 (2008), the United States Court of Appeals for Veterans Claims (Court) rejected the argument that the effective date assigned for a secondary service-connected condition must be the same as the effective date for the underlying condition under 38 C.F.R. § 3.310. The Court held that a claim for secondary service connection is not a claim for increased compensation; thus, the provisions of 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are not for application in determining the effective date of claim. Id.

Hence, "the date when application for that additional disability was made or when that additional disability was acquired or became manifest, if later than the date of the application, would control the effective date for a secondary service-connection award under section 5110(a)." Id. at 533. 

Unless specifically provided otherwise, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400.

Notably, the phrase "date entitlement arose" is not defined by statute or regulation. However, in Wright v. Gober, 10 Vet. App. 343, 351-52 (1997), the phrase "date entitlement arose" was found to be similar to the phrase "facts found." This case, along with the regulatory context, strongly suggests that the date entitlement arose is the date on which the facts in the case demonstrate that the entitling criteria were first met (i.e., date of initial diagnosis).

Here, the Veteran was not diagnosed with right lower extremity radiculopathy until June 17, 2020. See VA Back DBQ, dated June 17, 202
3.400.

Notably, the phrase "date entitlement arose" is not defined by statute or regulation. However, in Wright v. Gober, 10 Vet. App. 343, 351-52 (1997), the phrase "date entitlement arose" was found to be similar to the phrase "facts found." This case, along with the regulatory context, strongly suggests that the date entitlement arose is the date on which the facts in the case demonstrate that the entitling criteria were first met (i.e., date of initial diagnosis).

Here, the Veteran was not diagnosed with right lower extremity radiculopathy until June 17, 2020. See VA Back DBQ, dated June 17, 2020. Prior to that, the evidence is silent for signs or symptoms commonly associated with right lower extremity radiculopathy (e.g., numbness/tingling of the right lower extremity). Moreover, findings from VA examinations, conducted prior to June 17, 2020, were negative for signs or symptoms of radiculopathy. Compare VA Spine Examination, dated Jun. 30, 2011, with VA Back DBQ, dated May 17, 2019. 

Consequently, assigning an effective date for service connection of right lower extremity sciatic radiculopathy prior to June 17, 2020, would be absurd; as doing so would contradict competent and credible medical evidence of record, which clearly ruled out the presence of sciatic radiculopathy before that date. See id. Surely, the [V]eteran could not expect to receive a benefit for a disability that had not yet occurred. Ross, supra, at 533.

In sum, the Board concludes that the Veteran's disability arose on June 17, 2020, but not earlier. That is to say, the probative medical evidence of record clearly establishes that entitling criteria were not met for right lower extremity sciatic radiculopathy as of the date of receipt of the initial increased rating claim for his service-connected back disability. 

On this point, there is no reasonable doubt to resolve and the claim is therefore denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, supra, at 781.

2. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity sciatic radiculopathy is denied.

The Veteran seeks an initial rating in excess of 10 percent for right lower extremity sciatic radiculopathy. 

The issue is whether that disability manifested by at least moderate incomplete paralysis during the appeal period. 

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated as 80 percent disabling. 38 C.F.R § 4.124a, DC 8520.

As pertinent here, "mild," "moderate," and "severe" are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). 

Neuritis, cranial or peripheral, characterized by
 partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). 

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id.

Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. Id. 

Here, a June 2020 VA exam was obtained to determine the severity of the Veteran's back disability. A questionnaire (DBQ) was completed in conjunction with an in-person exam and records review. The examiner rendered a new diagnosis of right lower extremity radiculopathy as a progression of the Veteran's service-connected lumbar strain with degenerative changes. See VA Back DBQ, dated Jun. 17, 2020.

Regarding impairment of motor functions, normal strength was observed in the lower extremities. There was no weakened movement due to muscle or of the peripheral nerves. Sensation to light touch testing of the lower extremities was normal. Deep tendon reflexes were normal for the lower extremities. Regarding trophic changes, there were no alterations noted in tissues in the lower extremities such as skin, nails, hair, muscles, or bones caused by impaired nerve supply. No muscle atrophy was observed in the lower extremities. See id.

Findings were also negative for complete paralysis (i.e., with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). A straight leg raising test was positive for pain and other signs or symptoms of radiculopathy on the right. The left was negative for the same. In the right lower extremity, the Veteran exhibited moderate intermittent pain (usually dull), mild paresthesias and/or dysesthesias, and mild numbness. However, there was no constant pain in either lower extremity. In sum, the examiner found a mild degree of wholly sensory sciatic nerve involvement. Id.

Therefore, the Board finds that the Veteran's disability primarily manifested by wholly sensory disturbance with pain. It also finds that the most probative evidence is against a finding that his disability manifested by impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. While he had a moderate degree of pain (usually dull) due to right sciatic radiculopathy, the frequency of pain was intermittent, the duration was not constant, and the severity was not excruciating at times. 

For these reasons, the Board finds the level of impairment caused by the Veteran's sciatic radiculopathy most analogous to mild incomplete paralysis of the right lower extremity.

The Board has considered all other potentially applicable DCs, however there is no evidence showing that the Veteran experienced neurological impairment associated with any other peripheral nerves that had not already been service-connected. As such, a separate or higher rating under a different DC is not warranted. In sum, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for right lower extremity radiculopathy. 

Accordingly, the benefit-of-the-doubt rule does not apply and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, supra, at 781. 

 

Cory M. Picton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Raymond P. Skinner III

The Board