BVA Case 21-3036: Back

On February 2,2021,the Board denied a rating in excess of 20%for the back disability, including a separate rating for left and right lower extremity radiculopathy prior to August 15, 2016,pursuant to Note 1 of the General Rating Formula for Diseases and Injuries of the Spine, and a rating in excess of 10%each for the lower extremity radiculopathy disabilities for the period from August 15,2016,to February 6, 2020.

Parties'Arguments The appellant argues that,with respect to the rating for his lower back conditions,the Board failed to consider whether functional loss under 38 C.

45 warranted a higher rating and that the Board failed to consider evidence that he was unable to perform repetitive range of motion testing in February 2017 or any range of motion testing in February 2020.

Next,the appellant avers that the Board erred in denying an effective date prior to August 2016 for bilateral lower extremity radiculopathy because the Board failed to discuss a 2004 diagnosis of sciatica and evidence of positive straight leg tests, and that the Board mischaracterized the September 2005 VA examiner's findings.

Last,regarding the radiculopathy ratings,the appellant asserts that the Board failed to discuss his lay statements describing severe radiculopathy symptoms and that the Board failed to reconcile the February and April 2017 VA examiners'inconsistent findings as to the severity of the radiculopathy.

The Board's determination of the proper disability rating is a finding of fact that the Court reviews under the clearly erroneous standard of review.

A finding of fact is clearly erroneous when the Court,after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed.

As with any material issue of fact or law,the Board must provide a statement of reasons or bases that is adequate to enable a claimant to understand the precise basis 8 for the Board's decision,as well as to facilitate review in this Court.