08-35 733
08-35 733
| Board of Vet. App. | Nov 7, 2017Background
- Veteran served on active duty 1967–1970 and filed a back disability claim on February 23, 2004; RO granted radiculopathy service connection effective November 17, 2011.
- Medical records: MRI (May 4, 2004) showing left L5–S1 involvement; later MRIs and treatment notes referencing left radiculopathy; EMG testing (2010) negative for lumbosacral radiculopathy bilaterally.
- Treatment notes documented bilateral neuropathic symptoms over time; some clinicians attributed symptoms to peripheral neuropathy rather than radiculopathy.
- Board found no objective evidence of right lower-extremity radiculopathy before November 17, 2011, but found objective left radiculopathy beginning May 4, 2004 (MRI) and granted service connection from that date.
- Board assigned a 10% rating (but no higher) for left lower-extremity radiculopathy from May 4, 2004 to November 17, 2011 based on mild/mostly sensory findings and lack of EMG/clinical signs of greater paralysis.
- Claims for peripheral neuropathy (upper and lower extremities), TDIU, and SMC prior to April 1, 2013 were remanded for additional development because prior opinions did not address herbicide exposure/aggravation baseline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effective date for right lower-extremity radiculopathy (pre-Nov 17, 2011) | Veteran argued radiculopathic symptoms existed earlier and sought an earlier effective date (as early as Oct 22, 2004) | RO relied on diagnostic testing and clinical records showing no objective right-sided radiculopathy before Nov 17, 2011 | Denied — no objective/diagnostic evidence of right radiculopathy prior to Nov 17, 2011 |
| Effective date for left lower-extremity radiculopathy (pre-Nov 17, 2011) | Veteran argued left radiculopathy arose with/soon after his 2004 back claim | RO originally assigned effective date Nov 17, 2011; relied on mixed evidence including negative EMG | Granted effective date May 4, 2004 — MRI showed left L5–S1 involvement; reasonable doubt resolved in claimant’s favor |
| Rating for left lower-extremity radiculopathy (May 4, 2004–Nov 17, 2011) | Veteran sought a compensable (potentially higher) rating | RO/Board cited largely sensory, mild symptoms, negative EMG, and absence of motor/reflex deficits | 10% rating granted for that period; higher rating denied (evidence doesn’t show moderate/moderately severe/severe paralysis) |
| Service connection for peripheral neuropathy and related TDIU/SMC prior to Apr 1, 2013 | Veteran argued neuropathy could be related to service (including presumed herbicide exposure) and/or aggravated by service-connected back condition | Prior examiners found neuropathy less likely than not related to service but did not address herbicide exposure or baseline for aggravation | REMANDED for addendum opinions addressing relation to herbicide exposure and identifying baseline/which extremities aggravated; TDIU/SMC remanded pending neuropathy outcome |
Key Cases Cited
- D'Aries v. Peake, 22 Vet. App. 97 (Board remand compliance and substantial compliance with remand directives)
- Stegall v. West, 11 Vet. App. 268 (remand compliance requirement)
- Stefl v. Nicholson, 21 Vet. App. 120 (medical opinions must address all theories of entitlement)
- Schafrath v. Derwinski, 1 Vet. App. 589 (consideration of all potentially applicable diagnostic codes)
- Fenderson v. Brown, 12 Vet. App. 119 (staged ratings appropriateness)
- Kutscherousky v. West, 12 Vet. App. 369 (claimant’s right to submit additional evidence after remand)