Citation Nr: 1803379 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 10-25 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, panic disorder and agoraphobia. 2. Entitlement to an increased evaluation for degenerative arthritis of the lumbar spine (previously rated as lumbar spinal stenosis), rated 20 percent disabling from June 10, 2015, and 10 percent disabling prior to that date. 3. Entitlement to an evaluation in excess of 10 percent for radiculopathy of the right lower extremity. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from February 2000 to September 2003. This matter comes to the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Per the Veteran's request, a videoconference Board hearing was scheduled for December 19, 2013, and the appellant failed to appear. The appellant has not filed a motion for a new hearing. Accordingly, the case will be processed as though the request for a hearing has been withdrawn. See 38 C.F.R. § 20.704 (d) (2017). In February 2014, the Board issued a decision remanding these matters to the Agency of Original Jurisdiction (AOJ) for additional development. As the requested medical opinion was obtained, the Board finds the directives have been substantially complied with, and the matter again is before the Board. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.). As noted by the Board in the 2014 decision, issue one has been characterized consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issues of service connection for a psychiatric disorder, increased rating for degenerative arthritis of the lumbar spine and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT Throughout the appeal period, radiculopathy of the right lower extremity has approximated moderate incomplete paralysis of the sciatic nerve; moderately severe or severe incomplete paralysis, or complete paralysis, has not been demonstrated. CONCLUSION OF LAW The criteria for an evaluation of 20 percent for radiculopathy of the right lower extremity are met; the criteria for an evaluation in excess of 20 percent have not been met or approximated at any time. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103 (a), 5103A (2012); 38 C.F.R. § 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist as to this claim, and the appeal may be considered on the merits. II. Analysis and Discussion In the June 2007 rating decision on appeal, the RO granted service connection and a 10 percent rating for right lower extremity radiculopathy as a separately rated manifestation of service-connected lumbar spine disability. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the service-connected disability has not materially changed and a uniform evaluation is warranted. The Veteran's right lumbar radiculopathy was initially rated under 38 C.F.R. § 4.124a, DC 8521, which pertains to external popliteal nerve (common peroneal). However, as the most relevant and thorough findings clearly relate to the sciatic nerve, the Board finds that rating under DC 8520, which pertains to the sciatic nerve, is appropriate and most beneficial to the Veteran. Under DC 8520, an 80 percent rating will be assigned where there is complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. A 60 percent rating is warranted where there is severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. 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. Id. Parenthetically, the Board notes that the ratings under the aforementioned DC 8521 also provide for a 20 percent rating for moderate incomplete paralysis. The Board notes that the findings on the June 2015 VA examination are sensory. As such the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a. Regardless, that examination and the rest of the record clearly demonstrate that the objective neurological abnormality manifested in the right lower extremity is moderate rather than mild as to the right lower extremity radiculopathy. Initially, the April 2007 examination report indicated that lumbar spinal stenosis was causing right intermittent radiculopathy. The June 2015 examination of the spine reflects that the Veteran had sciatic nerve radiculopathy manifested by moderate constant and intermittent pain, moderate paresthesias and or dysthesias and moderate numbness. The nerve roots involved were specifically sciatic. The overall severity of the right-sided radiculopathy was characterized as moderate. An accompanying peripheral nerves VA examination also performed in June 2015, prepared by a different person but signed by the same VA physician (an assistant chief of staff), characterizes the sciatic nerve severity as mild. Based on the above, the Board finds that a 20 percent rating is warranted for the entire appeal period for radiculopathy of the right lower extremity, because the disability has more nearly approximated moderate symptoms at all times relevant to the claim. The Veteran's complaints have remained quite consistent over the period of the claim as to sensory-type deficit in the right lower extremity. The June 2015 spine examination findings, coupled with the Veteran's long-standing complaints, lend credence to the theory that the symptoms have been fairly uniform and moderate throughout the appeal period as to right lower extremity. As such, the Board finds that the impairment has been moderate throughout the appeal period for the right lower extremity, and that a 20 percent rating is thus warranted for the right lower extremity radiculopathy. As to the June 2015 peripheral nerve findings of mild sciatic nerve impairment, the Board does not find this characterization prevents the conclusion that the current condition is one of moderate rather than mild incomplete paralysis. The June 2015 spine examination findings are well-supported and not contradictory to the established record inasmuch as moderate incomplete paralysis is approximated.. However, the preponderance of the evidence is against a rating in excess of 20 percent for radiculopathy of the right lower extremity. The manifestations described have been at most moderate, and the objective findings are sensory. Again, the Schedule of Ratings of Peripheral Nerves provides that wholly sensory involvement should be rated mild or at most moderate. Overall, the Board finds that no more than moderate incomplete paralysis has been shown. For all the foregoing reasons, the preponderance of the evidence of record is against rating in excess of 20 percent at any time during the pendency of the claim for radiculopathy of the right lower extremity. Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER A 20 percent evaluation, and no higher, is granted for radiculopathy of the right lower extremity, subject to the laws governing the award of monetary benefits. REMAND I. Service connection for psychiatric disorder to include PTSD The Veteran maintains that he has a current psychiatric disorder that is caused by service. The Veteran detailed his assertions in a July 2014 statement. He reported that he began to experience what he felt were symptoms of psychiatric disorder/PTSD within two weeks of service separation. He reported initial panic attacks with daily episodes of panic, fear, shortness of breath, sweating and crying. He found these to be paralyzing and was afraid to venture out into the world. He sought help at VA and took medication, but then "immaturely" stopped his medication and again began to have symptoms. He noted that his symptoms of panic, fear and anger worsened and he was fired from his job due to what was termed unprofessional behavior. He believes that his anger and related issues are due to some form of service-connected mental health problem. As noted in a February 2007 VA memorandum, the Veteran failed to respond to the initial requests for him to define his in-service stressors, and a formal finding was made that there was a lack of information to verify stressors. However, in June 2016 he submitted a VA form 21-0781, Statement in support of claim for PTSD, citing two incidents that occurred while he was assigned as a firefighter to the U.S.S. Nimitz. He believes these led to his present psychiatric disorder to include PTSD. The first incident is described as follows: I don't remember the exact day but we were deployed in the Persian Gulf the Summer of 2003. As a member of the flying squad we were dispatched to the hanger deck for a medical emergency. An Airman had passed out beneath the wing of a plane. I secured the area around the airman. When medical arrived they discovered he had a heart attack. Medical began to use the defibrillators on this gentleman. I watched them pump electricity into his lifeless body for several minutes before they called him dead. I am positive this incident was documented during the USS Nimitz deployment of 2003. I still picture the lifeless body jumping every time they hit him with the defibs. The second incident is described as follows: Don't remember the exact day. We were doing workups with the ship and went up to Vancouver, Canada. The day we arrived a young man worked in the morning and went to take a nap before we got off the ship. Shortly before departure we (The Flying Squad) got called to a berthing on the second deck. As we responded we found a young man in his bunk lifeless and purple. Not sure what the cause of death was. Had to secure the area and continue to see this young man's purple face in my day to day life. Fire Marshal was present. The Veteran believes that both of these incidents should be documented in the 2003 deployment records for the Flying Squad (at sea emergency response team) of the Nimitz. Clinically, VA treatment records reflect that the Veteran sought treatment for panic and anxiety symptoms beginning in February 2004. Diagnoses in VA treatment records include panic disorder, anxiety and rule out PTSD. Additionally, the Veteran in July 2014 submitted a business card with the name and address of his VA psychiatrist (Dr. J.D.) indicating that she could be contacted related to his psychiatric diagnosis. Here, the Board notes that the Veteran's representative requested in December 2017 that VA attempt verification of the alleged stressors and also afford the Veteran a psychiatric examination to determine the nature and etiology of any mental disorder consistent with 38 C.F.R. § 3.159(c)(4) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA must make a "'reasonable effort" to obtain all relevant records, including records pertaining the claimant's service. The AOJ should make these efforts, to include contacting Joint Services Records Research Center (JSRRC) or take other appropriate steps to verify the alleged stressors. VA should, if necessary, submit multiple requests to the JSRRC covering the relevant time window in 60-day increments, given the JSRRC's 60-day requirement. Gagne v. McDonald, 27 Vet. App. 397 (2015). Thereafter, examination should be undertaken to determine whether any psychiatric disorder, to include PTSD, present during the pendency of this claim is as likely as not related to service. II. Lumbar Spine Rating The Veteran's lumbar spine disability is currently assigned a 10 percent rating prior to June 10, 2015, and 20 percent thereafter. The Veteran was most recently afforded VA examination relating to lumbar disability in June 2015. That VA examination report, however, does not address the Veteran's pain and ranges of motion actively and passively, or specifically in weight bearing and non-weight bearing consistent with Correia v. McDonald, 28 Vet. App. 158 (2016) and 38 C.F.R. § 4.59 (2017). Therefore, on remand, the Veteran should be afforded a new VA examination to address the current severity of his lumbar spine disability, to include testing for pain and ranges of motion actively and passively, weight-bearing and non-weight bearing. III. TDIU The issue of entitlement to a TDIU is inextricably intertwined with the remaining claims being remanded. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, this issue must also be returned to the AOJ for further consideration. Accordingly, the case is REMANDED for the following action: 1. Send a summary of the Veteran's alleged stressful event reported in his June 2016 VA form 21-0781 and a copy of his DD Form 214 to the JSRRC. The JSRRC should be requested to provide any additional information that might corroborate the alleged stressful incident on the U.S.S. Nimitz during the 2003 deployment. All attempts to obtain this information must be documented in the Veteran's claims file. 2. Obtain all records of VA outpatient medical care since September 2015 including records of mental health care from the VA psychiatrist identified by the Veteran in his July 2014 document submission. Associate any records received with the electronic claims file. 3. Then, arrange for the Veteran to undergo a VA examination by an appropriate examiner for his claim for psychiatric disability to include PTSD. The entire claims file, must be made available to the examiner. The report of the examination should include a discussion of the Veteran's documented medical history and assertions and all clinical findings should be reported in detail. The examiner should answer the following questions: a. Does the Veteran have an acquired psychiatric disorder to include, PTSD? Please identify any such diagnoses. b. If there is PTSD, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's diagnosis of PTSD is related to his active duty? If PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. The examiner should provide an opinion as to whether the Veteran's diagnosis of PTSD is supportable solely by the stressor(s) that has (have) been verified or established in the record. c. If the Veteran is diagnosed with any other acquired psychiatric disorder, is it at least as likely as not (a 50 percent probability or greater) that the Veteran's acquired psychiatric disorder is related to or had its onset in active duty? 3. Schedule a new VA examination to address the current severity of the Veteran's service-connected lumbar spine disability. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must comply with the requirements of 38 C.F.R. § 4.59 involving measurements of passive and active range of motion in both weight bearing and non-weight bearing and if possible, with the range of opposite undamaged joint. The examiner must explain why any of these clinical tests are not appropriate or could not be performed. A complete rationale for any opinions expressed should be provided. The examiner should be asked to note whether there is any weakened movement, excess fatigability, incoordination, or pain on use. If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain). If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability. The examiner should note whether there are any additional degrees of loss of motion due to pain during flare-ups (if it is not feasible to quantify, please explain). The examiner should also address the effect of the Veteran's lumbar spine disability on his activities of daily living and occupational functioning. 4. Conduct any additional development pertinent to the TDIU. 5. Then, readjudicate the Veteran's claims. If any claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further 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). ______________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs