Citation Nr: 1800500 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 12-00 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for left knee disability as secondary to the service-connected degenerative disc disease L4-L5 with L1-2 degenerative joint disease, lumbar spine postoperative , and/or service-connected right knee arthritis. 2. Entitlement to an increased rating for radiculopathy, left lower extremity (sciatic nerve) in excess of 10 percent from April 7, 2009 through August 25, 2016. 3. Entitlement to an increased rating for radiculopathy, right lower extremity (sciatic nerve) in excess of 10 percent from April 7, 2009 through August 25, 2016. 4. Entitlement to an increased rating for radiculopathy, left lower extremity (sciatic nerve) in excess of 20 percent from August 26, 2016. 5. Entitlement to an increased rating for radiculopathy, right lower extremity (sciatic nerve) in excess of 20 percent from August 26, 2016. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to October 1977, and April 1979 to March 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the period from April 7, 2009 through July 28, 2016, symptoms of left lower extremity radiculopathy associated with the Veteran's lumbar spine disability most nearly approximated moderate incomplete paralysis of the sciatic nerve. 2. For the period from April 7, 2009 through July 28, 2016, symptoms of right lower extremity radiculopathy associated with the Veteran's lumbar spine disability most nearly approximated moderate incomplete paralysis of the sciatic nerve. 3. Beginning on July 29, 2016, symptoms of left lower extremity radiculopathy associated with the Veteran's lumbar spine disability most nearly approximated moderately severe incomplete paralysis of the sciatic nerve. 4. Beginning on July 29, 2016, symptoms of right lower extremity radiculopathy associated with the Veteran's lumbar spine disability most nearly approximated moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the period from April 7, 2009 through July 28, 2016, the criteria for an increased rating of 20 percent for left lower extremity radiculopathy, but no higher, have all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, 4.130, DC 8520 (2017). 2. For the period from April 7, 2009 through July 28, 2016, the criteria for an increased rating of 20 percent for right lower extremity radiculopathy, but no higher, have all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, DC 8520 (2017). 3. Beginning on July 29, 2016, the criteria for an increased rating of 40 percent, but no higher, for left lower extremity radiculopathy, have all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, DC 8520 (2017). 4. Beginning on July 29, 2016, the criteria for an increased rating of 40 percent for right lower extremity radiculopathy, but no higher, have all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.124a, DC 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in a letter sent to the Veteran in May 2009. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA, and private treatment records are associated with the claims. VA provided relevant examinations as discussed in further on in the decision. There is no indication of additional existing evidence that is necessary for a fair adjudication of these claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Increased Ratings for Right and Left Lower Extremity Radiculopathy The Veteran essentially contends that his right and left lower extremity radiculopathy is more severe than rated during the appeal period. The Veteran's lumbar radiculopathy, right and left lower extremity is currently rated under Diagnostic Code 8520 which provides ratings for paralysis of the sciatic nerve. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). The term "incomplete paralysis" with this and other peripheral nerve injuries indicates 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. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The Board notes that words such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. 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. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6 (2017). A. April 7, 2009 through July 28, 2016 From April 7, 2009 to August 25, 2016 the Veteran's right and left lower extremity radiculopathy was assigned a 10 percent disability rating for mild symptoms. Pertinent evidence of record includes several VA examinations, and VA and private treatment records. Turning to the evidence, on the June 2009 VA-contracted back examination, the Veteran endorsed symptoms of low back pain, which traveled down both legs. He described pain as cramping, burning, aching, and sharp that is exacerbated with prolonged sitting and standing, lifting, and bending. He reported pain with all exertional activity treated with medication, physical therapy, and pain management. Examination revealed tingling and numbness in the left lower leg. There was paresthesia and decreased sensation over the left knee and medial leg. Reflexes were normal and the Veteran's gait was observed as slow and deliberate. The examiner concluded the involved nerve was the femoral nerve. On examination in September 2013, the thoracolumbar spine Disability Benefits Questionnaire (DBQ) indicates the Veteran reported the onset of symptoms related to right and left lower extremity radiculopathy was following back surgery. He endorsed symptoms of pain down his leg, numbness, and decreased strength. The Veteran reported that he experienced increased pain down the legs with any activities of the legs. He also occasionally used a cane for support when his back pain became severe. Sensory examination was normal and muscle strength was also normal. Straight leg raising test was positive for the right and left legs. Symptoms of right and left lower leg radiculopathy included moderate intermittent pain with moderate paresthesias and/or dysesthesias. There was no muscle atrophy, numbness or tingling. The examiner opined that the Veteran's incomplete paralysis of the right and left leg was severe. On examination in October 2015, the thoracolumbar spine DBQ indicates that the examiner did not review the Veteran's claims file and medical records in conjunction with the evaluation. The resulting examination report notes the Veteran reported a constant, dull ache with an intermittent sharp pain in the bilateral legs. He reported that at times he is unsteady and has fallen while walking. He also used a cane to support ambulation. Sensory examination was normal for the right and left lower extremities. Straight leg raising test was negative for the right lower leg and positive for the left lower leg. Symptoms of the right and left lower extremities included moderate constant pain and severe intermittent pain. There was no muscle atrophy, numbness or tingling, paresthesias or dysesthesias. The examiner opined that the Veteran's incomplete paralysis of the right and left leg was mild to moderate and wholly sensory. During this period, VA and private treatment records show the Veteran routinely sought treatment for right and left lower extremity radiculopathy associated with his lumbar spine disability. VA treatment records show that at times the Veteran was noted to have an unsteady gait and walk with a limp. However, on other occasions the Veteran was shown to have a normal gait. Radicular symptoms included mild to moderate intermittent pain, paresthesias and/or dysthesia, and numbness and tingling at times in the right and left lower extremities. Moderate, constant pain and severe intermittent pain was found in the right and left lower extremities on examination in October 2015. In light of the forgoing, from April 7, 2009 through July 28, 2016, the Board finds that an increased rating of 20 percent, but no higher, is warranted. As discussed above, during this period, the lay and medical evidence reflects that the Veteran's symptoms more nearly approximated moderate incomplete paralysis of the sciatic nerve with regard to both right and left lower extremities. While the September 2013 VA-contracted examiner characterization of the radiculopathy symptoms was severe, this is not binding on the Board. In this regard, the resulting examination report indicates that sensory examination was normal and muscle strength was also normal. Furthermore, the examiner described symptoms of right and left lower leg radiculopathy as moderate intermittent pain and moderate paresthesias and/or dysesthesias. Additionally, the October 2015 DBQ indicates symptoms of the right and left lower extremities included moderate constant pain and severe intermittent pain. The October 2015 examiner opined however, that the Veteran's incomplete paralysis of both the right and left leg was mild to moderate and wholly sensory. These characterizations were consistent with the normal sensory examination findings and the other evidence indicating a lack of significant neurologic symptoms. Finally, the Board notes that the October 2015 thoracolumbar DBQ indicates that the examiner did not review the Veteran's claims file. Although it does not appear that the October 2015 examiner had access to the Veteran's claims file the Board points out that claims file review is not a requirement for medical opinions, and that a medical opinion may not be discounted solely because the opining clinician did not conduct such a review. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Rather, the question is whether the medical professional was informed of all relevant facts in rendering a medical opinion. Id. Additionally, the Board has considered the Veteran's reports that his service-connected disabilities impact his daily activities. Specifically, due to pain in the knees, he is unable to walk around in malls or shop at stores and he must take frequent breaks due to fatigue. The Board also acknowledges his reports of the inability to complete yard work and move household items, to include furniture and garbage containers that are half full. The Veteran is competent to so state, but his opinions must be weighed against the other evidence of record. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has reviewed all of the evidence of record, to include private medical records, VA medical records, and the VA examination reports. As discussed above, during the appellate term, the weight of the evidence is against a finding that the Veteran's symptoms are manifested by moderately severe incomplete paralysis, suggestive of a 40 percent disability rating; or severe incomplete paralysis, with marked muscular atrophy, suggestive of a 60 percent disability rating; or complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). For these reasons, the Board finds the preponderance of evidence supports a disability rating of 20 percent, but no higher, from April 7, 2009 through July 28, 2016, for radiculopathy of the right and left lower extremities. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 4.7 (2017). B. From July 29, 2016 to Present By way of background, in a March 2017 rating decision, the RO increased the disability rating for radiculopathy of the right and left lower extremities from 10 percent to 20 percent and assigned an effective date of August 25, 2016. The effective date is the date of the August 2016 thoracolumbar examination. On VA thoracolumbar spine examination in August 2016, the examination report indicates that the examiner reviewed the Veteran's claims file and medical records in conjunction with the evaluation. The resulting examination report notes the Veteran reported having his first back surgery in 2003 to relieve pressure on the nerve due to frequent falling related to weakness and numbness in both legs. After surgery, the Veteran reported the pain is the same but strength improved in both legs and he had much less falling. In 2008, he had a second surgery for lumbar fusion. Shortly after surgery he fell at home while experiencing sharp shooting pain, numbness, and weakness of the legs. He explained having a third surgery in November 2015. Afterward he was paralyzed and underwent a fourth surgery the same day. Following surgery he was able to move only one toe and participated in rehabilitation. Due to the legs being weak and numb he did not return to work following the November 2015 surgery. He also reported falling a total of five times in 2016 and he must use a walker to support ambulating. The examiner noted that with long term rehabilitation, the Veteran is able to walk with a walker and a splint on the right leg for right foot drop. Examination of the legs revealed decreased sensation. There was no sensation and weakness of both legs. Muscle strength testing was 4/5 indicating active strength with some resistance. There was no muscle atrophy and deep tendon reflexes were 1+ in the bilateral knees and 0 in the bilateral ankles. He was unable to perform straight leg testing. Symptoms of right and left lower leg radiculopathy included moderate constant pain with moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner opined that the Veteran's incomplete paralysis, involving the sciatic nerve of both the right and left leg was moderate. VA treatment records during this period are consistent with the findings of the VA examiners. Specifically, a July 29, 2016 VA medical treatment record indicates the Veteran had back surgery in November 2015. He was paralyzed from the waist down and had to return for further surgery the same day. It was noted that after surgery, he was required to wear an AFO for foot drop. It was noted that he had no feeling in both legs and he had constant falls primarily in the bathroom and shower. Furthermore, on VA examination of the back in August 2016, the examiner concluded that with long term rehabilitation, the Veteran is able to walk with a walker and a splint on the right leg for right foot drop. Examination of the legs revealed decreased sensory exam and there was no sensation and weakness of both legs. Muscle strength testing was 4/5 indicating active strength with some resistance. The Board acknowledges the Veteran's contentions in the November 2017 Appellant's Brief that the severity of radiculopathy of the lower extremities is more severe than the assigned ratings. Although the Veteran undoubtedly had impaired mobility, and difficulty with prolonged walking, standing, decreased muscle strength, and decreased sensation, the objective medical evidence of record does not indicate that the Veteran has complete paralysis of the sciatic nerve, as required for an 80 percent rating under DC 8520. The Veteran has not contended, and the medical evidence does not indicate that the Veteran has any muscular atrophy of the right or left lower extremities; hence, the Veteran does not meet the requirements for a 60 percent disability rating. The above analysis shows that the criteria for an increased rating were established from July 29, 2016. From this date, the Board finds that the Veteran's symptoms are most accurately characterized as moderately severe incomplete paralysis of the sciatic nerve, and a 40 percent disability evaluation should be assigned. This rating is based on evidence from the July 2016 VA medical record diagnosing right foot drop and also noting that the Veteran is required to wear an AFO on the right foot, use a walker and wear leg splints as a result of weakness, numbness, and right foot drop. Here, the Veteran's statements and the medical evidence establish that he is unable to ambulate without assistive devices. In this regard, medical records reflect that following lumbar spine surgery in November 2015, the Veteran was paralyzed from the waist down, and at a certain time was only able to move one toe. However, the competent and credible evidence does not demonstrate complete paralysis of the affected nerve, or no active movement possible of muscles below the knee, to meet the criteria for an 80 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). In this regard, the February 2017 VA-contracted knee and lower legs DBQ shows normal muscle strength indicating active, normal movement despite decreased weakness, and the Veteran's need to wear a brace on the right leg. The examination report notes right foot drop related to the Veteran's back disability, difficulty ambulating, as well as weakness and limitation of motion of the right knee; however, the examination revealed normal muscle strength testing and normal flexion of the right and left knees at 5/5. Hence, the Board finds that any paralysis of the sciatic nerve, or inactive movement of muscles below the knee was fleeting. For these reasons, the Board finds that the weight of the evidence supports a disability rating of 40 percent, but no higher, for radiculopathy of the right and left lower extremities from July 29, 2016. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 4.3, 4.7 (2017). The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. The Board finds that the Veteran's symptoms of right and left radiculopathy of the lower extremities, are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). ORDER Entitlement to an increased rating of 20 percent, but no higher, for radiculopathy, left lower extremity for the period from April 7, 2009 through July 28, 2016, is granted, subject to the regulations governing the disbursement of monetary benefits. Entitlement to an increased rating of 20 percent, but no higher, for radiculopathy, right lower extremity (sciatic nerve) for the period from April 7, 2009 through July 28, 2016, is granted, subject to the regulations governing the disbursement of monetary benefits. Entitlement to an increased rating of 40 percent, but no higher, for radiculopathy, left lower extremity (sciatic nerve) beginning on July 29, 2016, is granted, subject to the regulations governing the disbursement of monetary benefits. Entitlement to an increased rating of 40 percent, but no higher, for radiculopathy, right lower extremity (sciatic nerve) beginning on July 29, 2016, is granted, subject to the regulations governing the disbursement of monetary benefits. REMAND Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310 (2017). The Veteran seeks entitlement to service connection for left knee disability, secondary to service-connected disabilities. Specifically, the Veteran contends that shortly after back surgery in 2008 he fell injuring his left knee and he has experienced problems since that time. In a May 2017 rating decision, the AOJ granted service connection for left knee arthritis, effective April 7, 2009. In the November 2017 Appellant's Brief, the Veteran through his representative, contended that his left knee disability is secondary to his service-connected right knee disability. There is insufficient medical evidence of record as to whether the Veteran's left knee disability was caused or chronically worsened by his service-connected right knee disability. A remand is therefore necessary to obtain such evidence. Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran is scheduled for a compensation and pension examination of his left knee. The examiner must review the claims file in conjunction with the examination. The examiner is asked to provide a medical opinion as to (a) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee condition was caused by his service-connected right knee condition and if not caused by his service connected right knee disability then (b) whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left knee condition was has been chronically worsened (aggravated) by his service-connected right knee condition. The examiner must support any and all opinions with a rationale. 2. Then, after conducting any additional necessary development, readjudicate the claim of entitlement to service connection for a left knee disability. If any benefit sought is not granted, furnish to the Veteran and his representative a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the United States Court of Appeals for (CONTINUED ON NEXT PAGE) Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs