Citation Nr: 1802387 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-23 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as due to exposure to herbicide agents. 2. Entitlement to a separate rating for right lower extremity (RLE) radiculopathy associated with service-connected low back disability. 3. Entitlement to a rating in excess of 20 percent prior to August 24, 2015 and in excess of 40 percent thereafter for left lower extremity (LLE) radiculopathy to the sciatic and external cutaneous nerves. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel INTRODUCTION The Veteran had active service from March 1969 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2012 and September 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. In May 2015, the Board remanded the case for additional development and it now returns for further appellate review. The issues of entitlement to service connection for bilateral upper extremity peripheral neuropathy and entitlement to a separate rating for RLE radiculopathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to August 24, 2015, the Veteran's LLE radiculopathy to the sciatic and external cutaneous nerves resulted in no more than moderate incomplete paralysis of the affected nerve. 2. As of August 24, 2015, the Veteran's LLE radiculopathy to the sciatic and external cutaneous nerves resulted in no more than moderately severe incomplete paralysis of the affected nerve. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent prior to August 24, 2015 and in excess of 40 percent thereafter for LLE radiculopathy to the sciatic and external cutaneous nerves have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code (DC) 8529-8620 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Further, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (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 duty to assist argument). II. Analysis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that higher ratings for his LLE radiculopathy are warranted. In this regard, such disability was evaluated as 20 percent disabling for the appeal period prior to August 24, 2015, pursuant to DC 8620, which pertains to neuritis of the sciatic nerve. Following a VA examination conducted in August 2015, which revealed the involvement of the external cutaneous nerve of the thigh in addition to the sciatic nerve, a 40 percent rating was assigned as of August 24, 2015, pursuant to DC 8529-8620, which pertains to the external cutaneous nerve of the thigh and the sciatic nerve, respectively. DC 8620 provides that neuritis of the sciatic nerve is evaluated pursuant to paralysis of the sciatic nerve under DC 8520. In this regard, 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. DC 8520 provides that a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A maximum 80 percent rating is assigned for 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. 38 C.F.R. § 4.124a, DC 8520. DC 8529 provides that mild or moderate paralysis of the external cutaneous nerve of the thigh warrants a noncompensable rating, and severe to complete paralysis of the external cutaneous nerve of the thigh warrants a 10 percent rating. The words "moderate" and "severe" are not defined in 38 C.F.R. §§ 4.120-4.124a. In applying the schedular criteria for rating peripheral nerve disabilities, the term "incomplete paralysis" 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The Board finds that the evidence of record reflects that, prior to August 24, 2015, the Veteran's LLE radiculopathy resulted in no more than moderate incomplete paralysis of the affected nerve and, as of such date, resulted in no more than moderately severe incomplete paralysis of the affected nerve. Consequently, the Board finds that the criteria for a rating in excess of 20 percent prior to August 24, 2015 and in excess of 40 percent thereafter for LLE radiculopathy to the sciatic and external cutaneous nerves have not been met. In this regard, the Veteran was afforded a VA examination in November 2011. During the examination, he reported continued pain in his left buttock and numbness in his lateral thigh. He described the pain in his buttock as sharp like an "icepick in the buttock" and sitting for prolonged periods of time exacerbated his pain. The Veteran's muscle strength was normal with no atrophy and his sensory examination was also normal. Upon reflex examination, on the left side, the ankle and knee were hypoactive. It was noted that the Veteran had radicular symptoms consisting of moderate constant pain and moderate numbness in the LLE. The LLE did not exhibit intermittent pain or paresthesias and/or dysesthesias. Based on such testing, the examiner indicated that the Veteran had left radiculopathy with the involvement of the sciatic nerve that was moderate in severity. The examiner concluded that the Veteran's LLE sciatic nerve pain status post lumbar laminectomy was a permanently disabling condition due to the chronic pain and numbness in the left buttock and thigh which limited his mobility and lumbar ROM. The Veteran was afforded another VA examination in June 2012. In this regard, the Veteran's muscle strength was normal with no atrophy and his sensory examination was also normal. Upon reflex examination, on the left side, the ankle and knee were normal. However, the Veteran had an abnormal gait that was described as a limb due to his LLE radiculopathy. It was noted that the Veteran had radicular symptoms consisting of mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the left lower extremity. Based on such testing, the examiner indicated that the Veteran had left radiculopathy with the involvement of the sciatic nerve that was mild in severity. Subsequent treatment records revealed that the Veteran continued to report complaints of numbness and pain. (See August 2013, March 2014, and April 2014 VA treatment records). During the November 2014 Board hearing, the Veteran testified that his disability had increased in severity since his last VA examination. Therefore, the Board remanded the matter in May 2015 in order to afford the Veteran a new VA examination as to determine the severity of the Veteran's left lower extremity radiculopathy. Such examination was conducted in August 2015, at which time the examiner interviewed the Veteran, reviewed the complete record, and conducted a full examination. In this regard, the examiner noted that the Veteran reported that he had numbness in his anterior left thigh and separate sharp pain in his left buttock, which would go down the leg to the foot. The Veteran's muscle strength was normal with no atrophy and his sensory examination was also normal. Upon reflex and muscle strength examinations, the left side was normal. It was noted that the Veteran had symptoms consisting of mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness in the left lower extremity. Based on such testing, the examiner indicated that the Veteran had left radiculopathy with the involvement of the sciatic nerve that was moderately severe incomplete paralysis. Upon a review of the record, the Board finds that, prior to August 24, 2015, the Veteran's LLE radiculopathy resulted in no more than moderate incomplete paralysis of the affected nerve. Specifically, at the November 2011 and June 2012 VA examinations and in VA treatment records, the Veteran only reported mild to moderate pain and numbness. Furthermore, objective testing revealed that his muscle and sensory examinations were normal. Additionally, while the Veteran had hypoactive reflexes of the left ankle and knee in November 2011, his reflexes were normal upon examination in June 2012. Consequently, based on such findings, the November 2011 VA examiner classified the Veteran's LLE radiculopathy as moderate and the June 2012 VA examiner classified such as mild. At no point pertinent to the appeal period prior to August 24, 2015, has the Veteran demonstrated more severe symptomatology related to his LLE radiculopathy and no examiner has classified such as more than moderate impairment of the affected nerve. Consequently, a rating in excess of 20 percent for LLE radiculopathy prior to August 24, 2015, is not warranted. As of August 24, 2015, the evidence, to specifically include the VA examination conducted on such date, revealed that the Veteran's LLE radiculopathy resulted in moderately severe incomplete paralysis of the affected nerve, thereby warranting a 40 percent rating. However, the Board finds that the evidence does not reflect that such disability resulted in more severe symptomatology more nearly approximating severe incomplete paralysis of the affected nerve. Specifically, the August 2015 VA examination revealed that the Veteran exhibited mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness in the left lower extremity, and the examiner classified his LLE radiculopathy as only moderately severe. Therefore, a rating in excess of 40 percent for such disability as of August 24, 2015, is not warranted. The Board has considered whether assigning further staged ratings under Hart, supra, are appropriate for the Veteran's service-connected LLE radiculopathy; however, the Board finds that the Veteran's symptoms referable to such disability have been stable throughout each period on appeal. Therefore, assigning further staged ratings for his LLE radiculopathy is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds that a rating in excess of 20 percent prior to August 24, 2015 and in excess of 40 percent thereafter for LLE radiculopathy to the sciatic and external cutaneous nerves is not warranted. In denying higher ratings, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A rating in excess of 20 percent prior to August 24, 2015 and in excess of 40 percent thereafter for LLE radiculopathy to the sciatic and external cutaneous nerves is denied. REMAND Although the Board regrets the additional delay, another 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 claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With respect to the issue of entitlement to a separate rating for RLE radiculopathy associated with the Veteran's service-connected low back disability, he was afforded a VA examination in August 2015 pursuant to the May 2015 Board remand. Upon examination, muscle strength, sensory, and reflex examinations were normal. However, it was noted that the Veteran had symptoms consisting of mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness in the RLE. Based on such testing, the examiner indicated that the Veteran had peripheral neuropathy of the lower extremities. However, when asked to opine whether the Veteran had radiculopathy of the RLE associated with his back disability, the examiner only stated that the Veteran did not have RLE neuropathy. As the basis for the examiner's opinion is in direct conflict with the finding of peripheral neuropathy of the RLE on the accompanying examination, a remand is necessary to obtain an addendum opinion addressing such inconsistency. With regard to the Veteran's claim for service connection for bilateral upper extremity peripheral neuropathy, the examiner noted a diagnosis of such disorder, but concluded that there was no evidence of a neuropathy that began in service or is related to his in-service exposure to herbicide agents. As rationale, he opined that there was a note of tingling in a finger in 2007, but he was unable to find any previous reports, diagnosis, or work-up of a neuropathy either while in the service or the years after. The examiner also concluded that the Veteran's peripheral neuropathy of the upper extremities would not be a presumptive condition because it was not disabling within one year of herbicide exposure. However, the examiner failed to provide an opinion as to whether such disease was directly related to the Veteran's in-service herbicide exposure. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the VA examination does not adequately address the questions posed by the Board and a remand is necessary in order to obtain an addendum opinion addressing such matter. Accordingly, the case is REMANDED for the following action: 1. Return the record to the VA examiner who rendered the opinion in August 2015. The record and a copy of this Remand must be made available to the examiner. If the August 2015 VA examiner is not available, the record should be provided to an appropriate medical professional as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the examiner selected to write the opinion. Following a review of the record, the examiner is requested to address the below inquiries: (A) The examiner should offer an opinion as to whether the Veteran has radiculopathy and/or peripheral neuropathy of the RLE associated with his back disability, and if so whether it is characterized by mild incomplete paralysis, moderate incomplete paralysis, moderately severe incomplete paralysis, severe incomplete paralysis or complete paralysis of the affected nerve. The examiner should clearly delineate all functional impairments caused by the RLE. In this regard, if the examiner finds that the Veteran does not have a diagnosis of radiculopathy and/or peripheral neuropathy of the RLE, he or she should reconcile such determination with the findings noted at the August 2015 VA examination. (B) It is at least as likely as not (i.e., at least a 50 percent probability or greater) that the Veteran's diagnosed bilateral upper extremity peripheral neuropathy of the upper extremities is related to his acknowledged in-service exposure to herbicide agents? The sole basis for a negative opinion cannot be that such disorder is not on the list of diseases subject to presumptive service connection based on exposure to herbicide agents. A rationale for any opinion offered should be provided. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs