Citation Nr: 18143632 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 13-32 455 DATE: October 19, 2018 ORDER A disability rating of 40 percent for left leg radiculopathy associated with degenerative disc disease of the lumbar spine with disc bulge at L2-L3 and L4-L5 (lumbar spine condition) is granted, effective July 20, 2008. REMANDED The issues of (1) a disability rating greater than 10 percent for a lumbar spine condition, and (2) entitlement to a total disability rating based on individual unemployability (TDIU) are remanded for further development. FINDING OF FACT Beginning July 20, 2008, the symptoms of the Veteran’s left leg radiculopathy most nearly approximated moderately severe incomplete paralysis of the sciatic nerve. CONCLUSION OF LAW The criteria for the assignment of a 40 percent rating, but no higher, for left leg radiculopathy are met, effective July 20, 2008. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.3, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8599-8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1968 to June 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). In June 2015, the Board remanded the appeal. In August 2018, the Board informed the Veteran that the VLJ before whom he testified in April 2014 was no longer employed by the Board. The Veteran responded later in August 2018 that he did not want an additional Board hearing. Increased Rating for Left Leg Radiculopathy As indicated above, the Board finds that the Veteran’s left leg radiculopathy warrants a rating of 40 percent, effective July 20, 2008. Accordingly, to this extent, the Board grants the Veteran’s claim. The Board assigns this rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8599-8520, for symptoms analogous to paralysis of the sciatic nerve, as the Board finds this diagnostic code to be the most appropriate code in evaluating the Veteran’s disability picture. Under Diagnostic Code 8520, a 20 percent rating is assigned for moderate incomplete paralysis. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. Lastly, an 80 percent rating is assigned for complete paralysis where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or lost. In support of its determination to assign a 40 percent rating, the Board first notes that, in a July 2008 VA treatment record, the Veteran reported lower back pain and radiculopathy that had increased in severity during the previous 5 years. The Veteran stated that the pain was predominantly left-sided and he had a burning sensation in the left lateral gluteals. Additionally, the clinician noted reported symptoms of paresthesias in the left lateral thigh, left lateral leg below the knee, and in the left foot and toes. Objective testing revealed diminished reflexes and sensation in the left lower extremity. In an October 2008 VA treatment record, the Veteran admitted to a previous history of left foot drop, which had resolved. About eight months later, in June 2009, a VA clinician recorded that the Veteran experienced drop foot in the left foot, which had resolved. Thereafter, during a September 2009 VA back examination, the Veteran reported pain that radiated down his left leg, with numbness, tingling, and a burning sensation in his great toe. The Veteran reported left leg weakness and falling about two weeks prior. The examiner noted an abnormal gait pattern. A physical examination revealed an absence of tendon reflexes in the left knee and no sensation at the left extensor digitorum brevis and left great toe. A January 2010 VA treatment record similarly documented decreased sensation in the left calf and foot with reflexes absent in the Achilles tendon. In August 2011, Dr. Fine—a non-VA neurosurgery and spine specialist—stated that, over the past six to seven years, the Veteran had been experiencing progressive back pain and radicular symptomatology. Dr. Fine stated that the Veteran had numbness in the lateral aspect of the left leg as well as spasm in the piriformis muscle and hamstring. Dr. Fine commented that the Veteran had been through extensive conservative management and his symptoms had failed to resolve with epidural steroid injections or physical therapy. During the above-mentioned April 2014 Board hearing, the Veteran testified that his left foot dropped and that his left leg became numb if he sat for more than a half hour. See Hearing Tr. at 8. The Veteran again reported left drop, with three or four falls within three weeks, to a VA clinician in August 2015. As indicated from the evidence cited immediately above, the Veteran’s radiculopathy produced symptoms of pain, numbness, weakness, and a burning sensation as well as decreased reflexes and sensation in the left leg. Additionally, the Veteran experienced occasional left foot drop. For these reasons, the Board classifies his disability as moderately severe incomplete paralysis of the sciatic nerve and assigns a 40 percent rating. In addressing why a rating higher than 40 percent is not warranted, the Board finds that, for any time during the claim period, the Veteran’s left leg radiculopathy cannot be classified as severe incomplete paralysis or complete paralysis. In support of this determination, the Board notes that the record is devoid of evidence of marked muscular atrophy—criteria required for a 60 percent rating under Diagnostic Code 8520. Additionally, regarding the criteria for complete paralysis under Diagnostic Code 8520, the Veteran has not displayed (1) a lack of any active movement of muscles below the left knee, (2) weakened flexion of the left knee, or (3) loss of flexion below the left knee at any time during the claim period. Accordingly, to this extent, the Veteran’s claim is denied. Lastly, the Board notes that it is assigning July 20, 2008 as the effective date for the 40 percent rating. Under 38 C.F.R. § 3.400(o)(2), the Board may assign a retroactive effective date up to one year prior to the date of claim if it is factually ascertainable that an increase in disability occurred within the year prior to claim filing. In this case, the claim was filed on July 20, 2009 and it was factually ascertainable that an increase in disability occurred within a year prior to the claim filing. REASONS FOR REMAND 1. Increased Rating for a Lumbar Spine Condition Regarding the issue of a disability rating greater than 10 percent for a lumbar spine condition, the Board finds that another VA examination must be obtained. Specifically, in its June 2015 remand, the Board requested that the Veteran be provided a new VA examination. The requested examination was provided in January 2017, but, the examiner did not provide any estimations regarding probable additional losses in functionality during flare-ups, and his rationale for not doing so is inadequate and contrary to the United States Court of Veterans Claims’ holding in Sharp v. Shulkin. 29 Vet. App. 26, 32 (2017) (quoting DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)). As such, the January 2017 examination is inadequate for adjudicative purposes. Updated treatment record should also be secured. 2. TDIU Regarding the Veteran’s claims for a TDIU, the Board must remand it as it is dependent upon the remanded increased rating issue. Where a pending claim is inextricably intertwined with other claims currently on appeal, the appropriate remedy is to remand the claim on appeal pending the adjudication of the inextricably intertwined claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file. 2. Then schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected lumbar spine condition. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. (a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his service-connected lumbar spine condition, and how he characterizes the additional functional loss during a flare. (b.) If the Veteran describes experiencing flare-ups, identify the: i. frequency; ii. duration; iii. precipitating factors; and iv. alleviating factors. (c.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up: i. Forward flexion of the thoracolumbar spine is limited between 30 and 60 degrees; or ii. The combined range of motion of the thoracolumbar spine is limited to no more than 120 degrees. Additionally, the examiner should comment upon the occupational effects of the Veteran’s lumbar spine condition, including which types of tasks or activities would be limited. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel