Citation Nr: 1751396 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 15-34 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy from September 21, 2009, to December 5, 2013. 2. Entitlement to an initial rating higher than 10 percent for left lower extremity radiculopathy from September 21, 2009, to December 5, 2013. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from June 1958 to June 1960. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decisions of the Wichita, Kansas, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2015, the Board remanded the above issues. In a subsequent January 2016 rating decision, the RO granted the Veteran December 5, 2013, as the effective dates for the 20 percent ratings for his bilateral lower extremity radiculopathy. The Board finds that the October 2012 rating decision that granted service connection for bilateral lower extremity radiculopathy and granted 10 percent ratings did not become final did not become final because new and material evidence in the form of the October 2013 VA examination was received by the RO within one year of the Veteran being mailed notice of the October 2012 rating decision. See 38 C.F.R. § 3.156(b) (2016); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Therefore, the Board has recharacterized the issues on appeal as claims for higher initial ratings for radiculopathy from September 21, 2009, to December 5, 2013, and not claims for earlier effective dates for the 20 percent rating for radiculopathy prior to December 5, 2013. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT 1. From September 21, 2009, to November 21, 2011, the Veteran's right lower extremity radiculopathy equated to mild incomplete paralysis of the tibial nerve. 2. From September 21, 2009, to November 21, 2011, the Veteran's left lower extremity radiculopathy equated to mild incomplete paralysis of the tibial nerve. 3. From November 22, 2011, to December 5, 2013, the Veteran's right lower extremity radiculopathy equated to moderate incomplete paralysis of the tibial nerve but not sever or complete paralysis of the tibial nerve. 4. From November 22, 2011, to December 5, 2013, the Veteran's left lower extremity radiculopathy equated to moderate incomplete paralysis of the tibial nerve but not sever or complete paralysis of the tibial nerve. CONCLUSIONS OF LAW 1. The criteria for more than a 10 percent rating for the Veteran's right lower extremity radiculopathy have not been met at all times from September 21, 2009, to November 21, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8524 (2016). 2. The criteria for more than a 10 percent rating for the Veteran's left lower extremity radiculopathy have not been met at all times from September 21, 2009, to November 21, 2011. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8524 (2016). 3. The criteria for more than a 20 percent rating for the Veteran's right lower extremity radiculopathy have been met from November 22, 2011, to December 5, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8524 (2016). 4. The criteria for more than a 20 percent rating for the Veteran's left lower extremity radiculopathy have been met from November 22, 2011, to December 5, 2013. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8524 (2016). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran asserts that the 20 percent ratings for his radiculopathy of the right and left lower extremities should effective to at least the date of his October 11, 2013, VA examination because this is the date that the record shows he met the criteria for 20 percent ratings. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2016). When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). The Veteran's left and right lower extremity radiculopathy were rated as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8599-8524 from September 21, 2009, to December 5, 2013. (Parenthetically, the Board notes that the June 2014 rating decision that granted the Veteran 20 percent ratings for his radiculopathy did so under 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2016).) In this regard, 38 C.F.R. § 4.124a, Diagnostic Code 8524 provides a 10 percent rating for mild incomplete paralysis of the internal popliteal (tibial) nerve in either lower extremity. A 20 percent rating for moderate incomplete paralysis of the tibial nerve in either lower extremity. And, a 30 percent rating for severe incomplete paralysis of the tibial nerve in either lower extremity. 38 C.F.R. § 4.124a defines the term "incomplete paralysis" as indicating a degree of lost or impaired function substantially less than the type pictured 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.123 provides that neuritis, 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. 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. 38 C.F.R. § 4.124 provides that neuralgia, 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. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. September 21, 2009, to November 21, 2011 At the June 2009 VA examination the Veteran complained of leg/foot weakness and unsteadiness as well as left leg pain and right leg numbness. He reported that he used a cane to walk and was unable to walk more than a few yards. On examination he had an antalgic and dextro-scoliosis gait. Deep tendon reflexes were abnormal at 3+ with knee jerks bilaterally but were otherwise normal at 2 + in the ankles and plantar bilaterally. Similarly, muscle strength in the lower extremities was normal at 5/5 with normal muscle tone and no atrophy. Likewise, sensation in the lower extremities was normal at 2/2. Thereafter, the examiner opined as follows: The patient is a 72 year old man with known scoliosis without surgery, chronic back pain and now with several year history of increasing right greater than left leg numbness, especially the right thigh. He has no clear weakness and has no sphincter symptoms. He has received no specific treatment with the exception of epidural block without benefit. The patient is a 72 year old man with scoliosis and right greater than left leg numbness, without findings on neurologic examination and with only minimal findings on electro diagnostic testing of a long standing and inactive left L5 radiculopathy. Treatment records show the Veteran's complaints regarding radiating leg pain and numbness, the Board finds that nothing in these records show the his symptoms worse than what was reported by the above VA examiner. Given the above record, which is negative for any objective evidence of adverse neurological symptomatology except for the 3+ knee jerks as well as an antalgic and dextroscoliosis gait, the Board finds that the preponderance of the evidence shows that his disabilities did not more closely approximate the criteria for moderately incomplete paralysis of the tibial nerve in his lower extremity despite the Veteran's competent and credible reports of bilateral leg numbness. 38 C.F.R. § 4.124a; Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); Davidson. Therefore, the Board finds that the criteria for ratings in excess of 10 percent for right and left lower extremity radiculopathy have not been met. This is true at all times from September 21, 2009, to November 21, 2011, and therefore further consideration of staged ratings on this basis is also not warranted. Fenderson. From November 22, 2011, to December 5, 2013 At the November 2011 VA examination the Veteran complained of a 10 year history of bilateral leg/feet numbness that was mostly below the knees. He also complained of lost strength in his lower extremities. On examination, in both lower extremities he had mild constant pain, intermittent pain, numbness and severe right extremity paresthesias and/or dysesthesias and mild left extremity paresthesias and/or dysesthesias. Muscle strength in the knees and ankles were reduced at 2/5. Sensation was decreased in the upper thigh, thigh/knee, lower leg/ankle and foot/toes, bilaterally. His gait was antalgic and he used a cane to ambulate to help with balance. The examiner thereafter noted that his legs were painful and walking was difficult due to pain and numbness. There was no muscle atrophy or tropic changes and deep tendon reflexes were normal at 2+ in the knees and ankles. The examiner opined that the Veteran has "mild" incomplete paralysis of the superficial peroneal nerve and the tibial nerve. The diagnosis was L5 radiculopathy. Likewise, at the October 2013 VA examination the Veteran complained of increased pain since his last VA examination. On examination, the Veteran had tenderness from the waist down and an abnormal gait. Muscle strength in the hips, knees, ankles, and great toes were reduced at 4/5. Sensation was decreased in the upper thigh, thigh/knee, lower leg/ankle, and foot/toes, bilaterally. It was next reported that while the Veteran did not have constant or intermittent pain in his lower extremities he had moderate paresthesias and/or dysesthesias and moderate numbness in his lower extremities. However, there was no muscle atrophy and deep tendon reflexes were normal at 2+ in the knees and ankles. Thereafter, the examiner opined that the Veteran has "mild" radiculopathy bilaterally. Lastly the Board notes that while a review of the record on appeal reveals treatment records that show the Veteran's complaints regarding low back pain radiating into his legs, the Board finds that nothing in these records show the his symptoms were worse than what was reported by the above VA examiners. The November 2011 and October 2013 VA examiners opinion that the adverse neurological symptomatology seen at their examinations equates to only mild incomplete paralysis of the tibial nerve/ radiculopathy is not contradicted by any other medical evidence of record. Moreover, while the Board is not bound by this characterization, it nonetheless must weigh it when adjudicating if the criteria for higher ratings are warranted under Diagnostic Code 8524. In this regard, a review of the record on appeal revealed the Veteran's competent and credible subjective complaints of bilateral leg numbness and pain causing him to have difficulty walking due to balance problems. See Davidson. Moreover, the objective evidence of record included VA examiners finding that his bilateral radiculopathy caused numbness, and paresthesias/dysesthesias, decreased muscle strength, decreased sensation, and an antalgic gait. Moreover, the November 2001 examiner opined that his bilateral radiculopathy caused difficulty walking due to pain and numbness. Given the above record, the Board finds that the most probative evidence of record shows that his disabilities more closely approximate the criteria for moderate incomplete paralysis of the tibial nerve in both lower extremities despite the VA examiners characterization of his symptomatology as "mild" because this characterization is not supported by the objective adverse symptomatology seen at those VA examinations. 38 C.F.R. § 4.124a. This is true at all times from November 22, 2011, to December 5, 2013, and therefore further consideration of staged ratings on this basis is also not warranted. Fenderson. However, the Board finds that a rating higher than 20 percent is not warranted for either extremity. The Board has reached this conclusion because despite the above documented objective and subjective adverse symptomatology the record is negative for the Veteran's radiculopathy causing muscle atrophy, tropic changes, or reduced deep tendon reflexes in the knees or ankles. 38 C.F.R. § 4.124a; Owens. This is true at all times from November 22, 2011, to December 5, 2013, and therefore further consideration of staged ratings on this basis is also not warranted. Fenderson. ORDER A rating in excess of 10 percent for the Veteran's right lower extremity radiculopathy is denied at all times September 21, 2009, to November 21, 2011. A rating in excess of 10 percent for the Veteran's left lower extremity radiculopathy is denied at all times September 21, 2009, to November 21, 2011. A 20 percent rating for right lower extremity radiculopathy is granted at all times from November 22, 2011, to December 5, 2013. A 20 percent rating for left lower extremity radiculopathy is granted at all times from November 22, 2011, to December 5, 2013. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs