Citation Nr: 1806267 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-27 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an effective date prior to October 10, 2011 for radiculopathy of the left lower extremity. 2. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity. 3. Entitlement to total disability rating based on individual unemployability (TDIU) from November 2, 2006 to October 9, 2011. REPRESENTATION Appellant represented by: Polly Murphy, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Parke, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to July 1971 and from March 1973 to December 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2012, February 2013, and September 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. These claims were most recently remanded by the Board in December 2014. The Board notes that the Veteran filed his claim for TDIU in February 2012. However, the Court has held that entitlement to TDIU is an element of all appeals of increased rating claims. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, in this case, the TDIU claim is part of the claim for a higher initial rating for the Veteran's service-connected lumbar spine disability. As such, the appeals period for the claim for TDIU begins on January 26, 2004. The Veteran testified in support of these claims during a videoconference hearing held at the RO before another Veterans Law Judge in April 2014. That Veterans Law Judge is not available to participate in this case. In September 2017, the Board advised the appellant of his right to testify at a new hearing. In October 2017, the Veteran responded to the letter and stated that he did not wish to have another hearing. The Veteran submitted a July 2015 VA Form 9 Appeal to the Board and requested a videoconference hearing. The Veteran was appealing a September 2013 rating decision of the RO. Because the Veteran has requested a videoconference hearing, these claims will not be addressed in this decision. The Veteran will be scheduled for a videoconference hearing in due course as it pertains to those issues, separate from the issues decided in this decision. This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. As to the issue of entitlement to TDIU from November 2, 2006 to October 9, 2011, the remand directives have not been completed and the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). FINDINGS OF FACT 1. The Veteran submitted a claim encompassing left lower extremity radiculopathy on January 26, 2004. 2. From January 26, 2004 to July 21, 2015, the Veteran's left lower extremity radiculopathy was manifested by mild incomplete paralysis. 3. Since July 22, 2015, the Veteran's left lower extremity radiculopathy has been manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an effective date of January 26, 2004, but no earlier, for the grant of entitlement to service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 5107(b), 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.157, 3.400 (2017). 2. From January 26, 2004 to July 21, 2015, the criteria for a disability rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 8520 (2017). 3. Since July 22, 2015, the criteria for a disability rating of 20 percent, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, DC 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify was satisfied by letters in March 2006 and September 2012. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. VA has also satisfied the duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Earlier Effective Date In pertinent part, the effective date of an award of benefits is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Under VA regulations, a claim includes a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. The Veteran has been service connected for lumbar spine degenerative disc disease since January 26, 2004 under Diagnostic Code (DC) 5242. When the Veteran's lumbar spine degenerative disc disease also comes with associated objective neurological abnormalities separately under an appropriate DC. 38 C.F.R. § 4.71a, DC 5242 Note 1. The examiner at the Veteran's July 2015 VA medical examination stated that the Veteran's left lower extremity radiculopathy was first manifest in 2002. The Veteran's VA treatment records show radiculopathy of the lower extremities in July 1998. Additionally, the Veteran's private treatment records from Southwest Oklahoma MRI show that he reported low back pain that radiated into his lower extremities in March 2003. Therefore, the Board will grant the Veteran an effective date of January 26, 2004 for his left lower extremity radiculopathy. This is the earliest date that VA was in receipt of a claim from the Veteran for his service connected lumbar spine disability with associated radiculopathy. Radiculopathy The Veteran's radiculopathy of the left lower extremity is now rated as 10 percent disabling from January 26, 2004. Disability ratings with respect to neurological conditions ordinarily are assigned in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.12. In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory. Id. Special consideration is given to complete or partial loss of use of one or more extremities and disturbances of gait. 38 C.F.R. § 4.124a. Diagnostic Code 8520 pertains to paralysis of the sciatic nerve, and provides that a 10 percent rating is warranted for mild incomplete paralysis. A rating of 20 percent is warranted for moderate incomplete paralysis. Moderately severe incomplete paralysis merits a 40 percent rating. A rating of 60 percent requires severe incomplete paralysis with marked muscle atrophy. The maximum rating of 80 percent is reserved for complete paralysis shown by manifestations such as: the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Terms such as "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. The use of such terms by VA examiners or other physicians will be considered, but are not dispositive when assigning an evaluation. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran's November 2009 VA contract medical examination showed that the Veteran reported constant dull pain in his back radiating down to his bilateral lower extremities. The Veteran rated this pain as 7/10. The Veteran had decreased sensation on the left thigh and left lower extremity. The Veteran's October 2011 VA contract medical examination showed that the Veteran had severe pain that traveled down his legs. The only noted peripheral nerve involvement was the external cutaneous nerve of the thigh and sciatic nerve of the right lower extremity. The Veteran's April 2012 VA contract medical examination showed that the Veteran reported pain going down his left leg. Testing showed decreased sensation of the left lower leg/ankle and foot/toes. There was mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. The sciatic nerve was noted to be involved. The Veteran's April 2013 private treatment records from Oklahoma Sports and Orthopedics Institute showed that he had chronic lower radiculitis. The Veteran's July 22, 2015 VA contract medical examination showed that there was moderate constant pain, moderate paresthesias and/or dysthesias, and moderate numbness. The sensory examination showed decreases in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The examiner opined that there was moderate incomplete paralysis of the sciatic nerve. While the Veteran's attorney argued in the January 2014 Notice of Disagreement that the Veteran should be rated for the sciatic nerve and lateral femoral nerve, there is no evidence to support this assertion.. A thorough review of the Veteran's claims file shows that only the sciatic nerve has ever been shown to be involved in the Veteran's left lower extremity radiculopathy. Prior to July 22, 2014, the Veteran is not entitled to a higher rating. To warrant a higher rating for his left lower extremity radiculopathy, the evidence would have to show moderate incomplete paralysis, which the lay and objective evidence has not shown. Pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as 'excursion, strength, speed, coordination, and endurance,' in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. However, the Veteran's July 22, 2015 VA contract medical examination shows that there is moderate incomplete paralysis. As such, a 20 percent rating, but not higher rating, is warranted from July 22, 2015. However, the Veteran is not entitled to a higher rating for his left lower extremity radiculopathy without showing moderately severe incomplete paralysis. In this regard, the Board finds that the evidence does not show the Veteran's manifestations of his left lower radiculopathy approximates moderately-severe, incomplete paralysis to warrant the higher 40 percent criteria. ORDER An effective date of January 26, 2004, but no earlier, for the grant of entitlement to service connection for left lower extremity radiculopathy is granted. From January 26, 2004 to July 21, 2015, entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy is denied. Since July 22, 2015, entitlement to a disability rating of 20 percent, but no higher, for left lower extremity radiculopathy is granted. REMAND Unfortunately, a remand is required in this case for the issue of entitlement to a TDIU. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. In its December 2014 remand, the Board directed the RO to refer the Veteran's TDIU claim to the Director of the Compensation and Pension Service under 38 C.F.R. § 4.16(b) for any time period that the Veteran did not meet the schedular criteria under 38 C.F.R. § 4.16(a). As this action was not undertaken, another remand is warranted. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Refer the claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of whether a TDIU on an extraschedular basis is warranted. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 2. Then readjudicate the claim remaining on appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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. §§ 5109B, 7112 (2012). ______________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs