Citation Nr: 1758048 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 08-36 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for lumbar spine degenerative disc disease (DDD) and degenerative joint disease (DJD) of the L4-S1 region prior to October 16, 2014, and in excess of 20 percent thereafter. 2. Entitlement to a separate compensable rating for radiculopathy of the left lower extremity prior to October 3, 2012, as a neurological manifestation of the Veteran's service-connected lumbar spine DDD and DJD of the L4-S1 region. 3. Entitlement to an initial disability rating in excess of 10 percent for radiculopathy of the left lower extremity, as a neurological manifestation of the Veteran's service-connected lumbar spine DDD and DJD of the L4-S1 region, from October 3, 2012, to October 15, 2014, and in excess of 20 percent thereafter. 4. Entitlement to service connection for radiculopathy of the right lower extremity, as a neurological manifestation of the Veteran's service-connected lumbar spine DDD and DJD of the L4-S1 region. 5. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to May 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2013, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) at the RO. The transcript has been associated with the claims file. In May 2016, the Veteran was notified that the VLJ who held his August 2013 hearing was no longer employed by the Board. He was notified that he could request a hearing with a new VLJ but that if he did not respond within 30 days, the Board would assume he did not want another hearing. The Veteran did not respond to this letter. 38 C.F.R. § 20.717 (2017). In April 2014 and September 2016, the Board remanded this matter for further evidentiary development. In a November 2015 rating decision, the RO increased the Veteran's rating for lumbar spine DDD and DJD of the L4-S1 region from 10 percent disabling to 20 percent disabling effective October 16, 2014. Inasmuch as higher schedular ratings for the disability are available, and the Veteran is presumed to seek the maximum available benefit, the claim for a higher rating remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In a January 2013 rating decision, the RO granted service connection for radiculopathy of the left lower extremity with an evaluation of 10 percent, effective October 3, 2012. In a May 2017 rating decision, the RO increased the Veteran's rating for radiculopathy of the left lower extremity from 10 percent disabling to 20 percent disabling effective October 16, 2014. The Veteran did not file any document with VA expressing disagreement with the January 2013 or May 2017 decisions. However, the radiculopathy of the left lower extremity disability is a manifestation of the Veteran's service-connected lumbar spine disability. When the Veteran disagreed with the amount of compensation awarded for his lumbar spine disability, he did not limit his appeal to one manifestation but rather was seeking the highest rating or ratings available for the disability due to his service-connected back disability. See id. Moreover, regulation provides that VA is to evaluate any neurologic abnormalities associated with a spine disability under an appropriate diagnostic code. 38 CFR § 4.71a, Note (1) (2017). The Board is therefore required to consider whether ratings are warranted for neurologic abnormalities associated with the lumbar spine disability. Id. For these reasons, the Board concludes that when the Veteran appealed the rating assigned for his lumbar spine disability, his appeal encompassed ratings for all manifestations of the condition. The award of the rating for the radiculopathy of the left lower extremity disability in the January 2013 and May 2017 decisions does not limit the Board's jurisdiction to less than it had acquired via the notice of disagreement filed in connection with the rating decision that denied an increased rating for the Veteran's spine disability. Thus, the issues before the Board are as shown on the title page. The issue(s) of: entitlement to an initial disability rating in excess of 10 percent for lumbar spine DDD and DJD of the L4-S1 region prior to October 16, 2014, and in excess of 20 percent thereafter, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. From June 1, 2008, to October 15, 2014, the Veteran experienced no more than mild in severity left lower extremity radiculopathy manifested as complaints of occasional numbness of the left thigh, occasional radiating pain in the anterior and posterior left thigh, and moderate intermittent dull pain. 2. Beginning October 16, 2014, the Veteran experienced no more than moderate in severity left lower extremity radiculopathy manifested as slightly reduced muscle strength in the ankle and big toe, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. 3. As of October 3, 2012, the evidence of record favors a finding that the Veteran's right lower extremity radiculopathy is caused by his service-connected lumbar spine DDD and DJD. 4. Beginning October 3, 2012, the Veteran experienced no more than mild right lower extremity radiculopathy manifested as complaints of occasional numbness, mild intermittent pain, and mild dull pain. CONCLUSIONS OF LAW 1. The criteria for a separate 10 percent rating, but no higher, for left lower extremity radiculopathy from June 1, 2008, to October 2, 2012, as a neurological manifestation of the Veteran's service-connected lumbar spine DDD and DJD of the L4-S1 region, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.71a Note (1), 4.124a, Diagnostic Code 8520 (2017). 2. The criteria for a separate rating in excess of 10 percent for radiculopathy of the left lower extremity, as a neurological manifestation of the Veteran's service-connected lumbar spine DDD and DJD of the L4-S1 region, from October 3, 2012 to October 15, 2014, and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.71a Note (1), 4.124a, Diagnostic Code 8520. 3. The criteria for service connection for right lower extremity radiculopathy have been met, as of October 3, 2012. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). 4. The criteria for a separate 10 percent rating, but no higher, for right lower extremity radiculopathy from October 3, 2012, as a neurological manifestation of the Veteran's service-connected lumbar spine DDD and DJD of the L4-S1 region, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.71a Note (1), 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim decided herein, no notice or duty to assist deficiencies have been alleged by the Veteran or his representative. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.") Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be awarded on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already 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). In cases such as this, 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, 509-510 (2007). The following analysis is therefore undertaken with the possibility that "staged rating" (assignment of different ratings may be warranted for distinct periods of time, based on the facts found) may be warranted. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 8520, a 10 percent evaluation requires mild incomplete paralysis; a 20 percent evaluation requires moderate incomplete paralysis; a 40 percent evaluation requires moderately severe incomplete paralysis; a 60 percent evaluation requires severe incomplete paralysis with marked muscular atrophy; and an 80 percent evaluation requires complete paralysis of the sciatic nerve. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, such use is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the peripheral nerves, 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Left Lower Extremity Radiculopathy Regarding a separate rating for the left lower extremity, as discussed above, the RO granted service connection for radiculopathy of the left lower extremity with an evaluation of 10 percent, effective October 3, 2012. The RO later increased the disability rating to 20 percent effective October 16, 2014. June 1, 2008, to October 2, 2012 The Veteran underwent a VA examination in February 2008. After review of the Veteran's service treatment records and upon examination, the examiner diagnosed lumbar spine transitional vertebra with associated DDD and DJD with no sciatic symptoms. The examiner noted that the Veteran had stiffness and recurring muscular pain of the lumbar spine and indicated no history of flare-ups. Results of the straight leg raise test were negative. The examiner reported negative results of motor, sensory and reflex examinations. Review of the private treatment records indicate that the Veteran reported occasional left lower extremity numbness and radiating pain beginning in May 2008. See Dr. D.H. Treatment Notes. He was diagnosed with left lower extremity radiculopathy following an MRI of the lumbar spine in May 2008. See Shannon West Texas Memorial Hospital Radiology Report. The Board acknowledges that the February 2008 VA examiner opined that the Veteran had no sciatic symptoms associated with his lumbar spine DDD and DJD. However, the Board resolves doubt and finds that the Veteran is entitled to a separate disability rating for left lower extremity radiculopathy from June 1, 2008, the day following the date of the Veteran's discharge from military service. As to the applicable disability rating, the Board finds that a 10 percent disability rating is warranted for mild left lower extremity radiculopathy. In this regard, the private treatment records indicate occasional left lower extremity numbness and radiating pain in the left thigh. See May 2008 Dr. D.H. Treatment Notes; see also June 2008 Dr. D.H. Treatment Notes. In December 2008, the Veteran reported very little pain radiating into the posterior thigh on the left hand side. See Dr. D.G. Treatment Report. October 3, 2012, to October 15, 2014 From October 3, 2012, to October 15, 2014, the Veteran was assigned a 10 percent rating for his left lower extremity radiculopathy. In order to warrant a higher rating, the evidence must demonstrate that the paralysis was moderate. The Veteran underwent a VA examination in October 2012. The examination report indicated a diagnosis of lumbar radiculopathy with a date of diagnosis of 2008. The examiner indicated the Veteran had moderate, intermittent (usually dull) pain in the left lower extremity. The report indicated that the left lower extremity radiculopathy was mild in severity. The examiner noted that the Veteran had normal muscle strength, reflexes, and sensory examinations of the left lower extremity. The Board finds the medical evidence listed above to be competent, credible and highly probative. There have been no objective findings of loss of muscle mass, atrophy, or function indicated. As noted, where, as here, the involvement is wholly sensory, the rating should be for mild, or, at most, the moderate degree. As only mild sensory impairment was noted, the Board finds that a rating in excess of 10 percent is not warranted from October 3, 2012, to October 15, 2014. October 16, 2014 to Present From October 16, 2014, the Veteran has been assigned a 20 percent rating for his left lower extremity radiculopathy. In order to warrant a higher rating, the evidence must demonstrate that the paralysis was moderately severe. The Veteran underwent a VA examination in October 2016. While the examiner indicated 4 out of 5 muscle strength in the Veteran's left ankle on dorsiflexion and left great toe on extension, no muscle atrophy was found. The Veteran had hypoactive left knee reflex, and left ankle reflex was absent. The sensory examination noted normal left upper anterior thigh and left thigh/knee results. However, there was decreased sensation noted in the left lower leg and ankle. The left straight leg raising test was positive. During a May 2016 private examination, reflex and sensory examination were not performed. The Veteran was unable to perform straight leg raising testing. However, the examiner indicated that the Veteran had moderate constant pain, at times excruciating, moderate intermittent pain, and moderate dull pain of the left lower extremity. Paresthesias and dysesthesias were absent, as was numbness. The private examiner indicated that the Veteran had mild in severity radiculopathy of the left lower extremity. The Veteran underwent another VA examination in February 2017. Again, the examiner indicated 4 out of 5 muscle strength of the Veteran's left ankle on dorsiflexion and left great toe on extension. He also indicated 4 out of 5 muscle strength in the Veteran's left ankle on plantar flexion. However, no muscle atrophy was found. The Veteran, again, had hypoactive left knee reflex, and left ankle reflex was absent. The sensory examination indicated decreased sensation in the left lower leg and ankle. The left straight leg raising test was positive. Mild, usually dull intermittent pain, mild paresthesias and/or dysesthesias, and numbness were reported. No other neurologic abnormalities were indicated. The examiner indicated that the Veteran had mild in severity radiculopathy of the left lower extremity. The Board finds the medical evidence listed above to be competent, credible and highly probative. As such, the Board finds that the left lower extremity was not more than moderately disabling beginning October 16, 2014. While muscle strength testing results indicated a slight reduction in strength, muscle atrophy was not indicated. The Veteran's remaining left lower extremity radiculopathy manifestations were wholly sensory and reported as mild in severity. The remaining evidence of record does not indicate that a rating in excess of 20 percent is warranted for left lower extremity radiculopathy from October 16, 2014. Right Lower Extremity Radiculopathy In this case, the medical evidence of record favors a finding that the Veteran has right lower extremity radiculopathy caused by his service-connected lumbar spine DDD and DJD. The Board notes that the Veteran raised the issue of radiculopathy of the right lower extremity throughout the appellate process as manifestations of his lumbar spine disability. Specifically, he reported moderate numbness of his right lower extremity during an October 2012 VA lumbar spine examination. During a May 2016 private examination for the Veteran's service-connected lumbar spine examination, the Veteran described mild constant pain, at times excruciating, mild intermittent pain, and mild dull pain of the right lower extremity. Paresthesias and dysesthesias were absent, as was numbness. The private examiner indicated that the Veteran had mild in severity radiculopathy of the right lower extremity. The Board finds the medical evidence listed above to be competent, credible and highly probative. The evidence demonstrates that the Veteran's right lower extremity radiculopathy is shown to be due to his service-connected lumbar spine DDD and DJD. Accordingly, radiculopathy of the right lower extremity is granted as of October 3, 2012. As to the applicable disability rating, the Board finds that a 10 percent disability rating is warranted for mild left lower extremity radiculopathy. In this regard, the Veteran has reported moderate numbness, mild constant pain, mild intermittent pain, and mild dull pain of the right lower extremity. There have been no objective findings of loss of muscle mass, atrophy, or function indicated. As noted, where, as here, the involvement is wholly sensory, the rating should be for mild, or, at most, the moderate degree. As only mild sensory impairment was noted, the Board finds that a rating a separate 10 percent rating from October 3, 2012 is warranted. ORDER 1. An initial rating of 10 percent, but no higher, from June 2, 2008, to October 2, 2012, for left lower extremity radiculopathy is granted. 2. A separate rating in excess of 10 percent for radiculopathy of the left lower extremity from October 3, 2012, to October 15, 2014, and in excess of 20 percent thereafter, is denied. 3. As of October 3, 2012, service connection for right lower extremity radiculopathy, as a neurological manifestation of the Veteran's service-connected lumbar back disability, is granted. 4. An initial 10 percent rating, but no higher, from October 3, 2012, for right lower extremity radiculopathy is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In June 2016, the Veteran submitted a Disability and Benefits Questionnaire in regard to his lumbar spine disability that had been completed by a private examiner. The examiner noted that the Veteran was unable to perform range of motion testing because he had balance problems and risked falling. In its September 2016 decision, the Board found that a new examination was necessary to assess the Veteran's balance problem to determine if this was an additional symptom of his service-connected lumbar spine disability or a separate condition altogether. The Veteran underwent a VA examination in February 2017. In a March 2017 addendum opinion, the examiner opined that no service-connected disability would have affected the Veteran's balance during the June 2016 VA examination. In his February 2017 examination report, the examiner reported the Veteran's historical and present reports of flare-ups of the lumbar back disability. However, the examiner failed to adequately address whether the Veteran's pain, weakness, fatigability, or incoordination significantly limits his functional ability when he has a flare-up or with repeated use over a period of time. The examiner stated that it was not possible to determine without resorting to mere speculation, as there was no conceptual or empirical basis for making such a determination, without directly observing function under these conditions. When an examiner is asked to render an opinion and determines that he/she cannot do so without resorting to speculation, the Board may not rely on such an opinion unless the record in its entirety, including the examination and the opinion itself, shows that "'the examiner [did] not invoke the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts." Jones v. Shinseki, 23 Vet. App. 382 (2010). Additionally, the Court recently held in Sharp v. Shulkin, 29 Vet. App. 26 (2017), that before the Board can accept an examiner's statement that an opinion cannot be provided without resort to speculation, it must be clear that this is predicated on a lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. In the case of a Veteran with a history of flare-ups, if the examination occurs when a flare-up is not being experienced, the examiner must ascertain adequate information - such as frequency, duration, characteristics, severity, or functional loss - regarding the Veteran's flares by alternative means, in order to estimate the Veteran's functional loss due to flares based on all the evidence of record. Id. As the Board is remanding the higher disability evaluation claim for the Veteran's lumbar spine disability, entitlement to a TDIU must be remanded because the matters are inextricably intertwined and should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated.) Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current nature and severity of his service-connected lumbar spine disability. The claims file must be made available for review, and the examiner must note that a review was completed. All indicated tests and studies must be completed. The examiner should address the following: The examiner must also address functional impairment, if any, during flare-ups or when the lumbar spine is used repeatedly. The range of motion lost during a period of flare-up or over-use must be indicated in degrees. If the examination occurs when a flare-up is not being experienced, or at a time without repeated use over a period of time, the examiner must ascertain adequate information, such as frequency, duration, characteristics, severity, or functional loss regarding the Veteran's flares by alternative means and estimate the Veteran's functional loss due to flares or repeated use based on all the evidence of record. If the Veteran no longer experiences flare-ups of the lumbar spine, this should be made clear. The examiner should then review the record and elicit any information deemed necessary from the Veteran to ascertain the functional impact, if any, the Veteran's prior history of flare-ups had at the time. The examiner should solicit information, such as, the dates of previous flare-ups and the symptoms associated with such flare; frequency and duration of flare-ups; and a description of pain and duration of such pain during a flare-up. If this is not feasible to determine the above-requested information without resort to speculation, the examiner must provide an explanation for why this is so. It must be clear that the inability to provide an opinion is predicated on lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. 2. Thereafter, readjudicate all issues on appeal. If the benefits sought remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative. After allowing an appropriate amount of time for response, return the case to the Board for review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs