Citation Nr: 18145152 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 13-03 088 DATE: October 26, 2018 ORDER Entitlement to an initial disability rating greater than 10 percent for a right lower extremity peripheral nerve disability is denied. Entitlement to an initial disability rating greater than 10 percent for a left lower extremity peripheral nerve disability is denied. REMANDED Entitlement to an initial disability rating greater than 20 percent for right lateral disc herniation of the lumbar spine (lumbar spine disability) is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected right lower extremity peripheral nerve disability has manifested as no worse than symptoms approximating mild, incomplete paralysis, as shown by: subjective complaints of pain and numbness, and difficulties with standing and walking; and objective evidence of decreased sensation and at least one isolated finding of 1+/4 reflexes upon examination, though with mostly normal neurological examination findings regarding motor functioning and reflexes. 2. The Veteran’s service-connected left lower extremity peripheral nerve disability has manifested as no worse than symptoms approximating mild, incomplete paralysis, as shown by: subjective complaints of pain and numbness, and difficulties with standing and walking; and objective evidence of decreased sensation and at least one isolated finding of 1+/4 reflexes upon examination, though with mostly normal neurological examination findings regarding motor functioning and reflexes. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for a right lower extremity peripheral nerve disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code (DC) 8620. 2. The criteria for an initial disability rating greater than 10 percent for a left lower extremity peripheral nerve disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.123, 4.124a, DC 8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April to August 1984, and from September 1984 to December 2004. She testified before a Veterans Law Judge (VLJ) during a September 2015 video conference hearing and a transcript of that proceeding is of record. The VLJ who presided over the 2015 hearing left the Board to pursue another opportunity. Accordingly, in June 2018, the Board sent the Veteran a letter giving her the option to request another Board hearing within thirty days. As she did not respond, the Board will infer that she does not want another Board hearing and proceed. In January 2016, the Board remanded the issues on appeal for development. The Board finds that the Agency of Original Jurisdiction (AOJ) did not substantially comply with the 2016 remand directives regarding the lumbar spine claim on appeal. Therefore, another remand of that issue is required. However, the Board finds that the AOJ substantially complied with the 2016 remand directives regarding the right and left lower extremity peripheral nerve claims on appeal, and thus, another remand of those claims is unnecessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2016, the Board took jurisdiction over and remanded an inferred claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). In May 2017, while this appeal was in remand status, the Regional Office (RO) granted entitlement to a TDIU effective January 16, 2016 (the day following her last date of employment). See May 2017 rating decision and notification letter. The Veteran did not challenge any aspect of that rating decision. The Board recognizes the Veteran’s representative’s assertion that the Veteran intended to submit additional evidence in support of her appeal, including unspecified medical evidence and an independent medical opinion. See May 2017 VA Form 646. The representative also stated that the Veteran wished to submit releases regarding unspecified private providers. However, neither the Veteran nor her representative has submitted any additional evidence or releases since the May 2017 VA Form 646, and well over a year has passed. She was notified in a June 2017 letter that her appeal was returning to the Board, and she was told she had 90 days to submit additional evidence. The Veteran has had ample opportunity to submit relevant evidence in support of the claims denied herein, and to submit releases needed for the RO to obtain non-VA treatment records on her behalf. Indeed, in a March 2016 letter issued pursuant to the January 2016 Board remand, the RO expressly asked her to submit releases so it could attempt to obtain her private treatment records and offered her the chance to submit records herself; however, she did neither. Therefore, the Board finds that VA satisfied the duty to assist in obtaining private treatment records regarding the claims decided herein. Neither the Veteran nor her representative has raised any other duty to notify or duty to assist issues regarding the claims denied herein since the Board’s January 2016 remand. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 a duty to assist argument). Moreover, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R.§ 3.103(c)(2), and neither has identified any prejudice in the conduct of the Board hearing. As the issue has not been raised, there is no need for the Board to discuss compliance with Bryant v. Shinseki, 23 Vet. App. 488 (2010). See Dickens, supra. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See id. Pertinent regulations for consideration were provided to the Veteran in the November 2012 Statement of the Case (SOC) and will not be repeated here in full. Increased Initial Ratings The Veteran currently has initial disability ratings of 10 percent under DC 8620 for her service-connected right and left lower extremity peripheral nerve disabilities, respectively. She seeks higher initial ratings for both disabilities. Diseases of the peripheral nerves are evaluated under the Schedule of Ratings for Diseases of the Peripheral Nerves. See 38 C.F.R. § 4.124a, DCs 8510-8540, 8610-8630, and 8710-8730. DC 8620 refers to neuritis of the sciatic nerve. Under 38 C.F.R. § 4.123, peripheral neuritis is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating. Peripheral neuritis is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See id. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. See id. Higher ratings for sciatic nerve disabilities are warranted as follows: 20 percent (for moderate, incomplete paralysis of the sciatic nerve); 40 percent (for moderately severe, incomplete paralysis of the sciatic nerve); and 60 percent (for severe, incomplete paralysis of the sciatic nerve with marked muscular atrophy). 38 C.F.R. § 4.124a. The terms mild, moderate, moderately severe, and severe as used in the various DCs for nerve conditions are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence such that the decision is “equitable and just.” 38 C.F.R. § 4.6. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture 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. 38 C.F.R. §§ 4.123, 4.124, 4.124a. Initially, the Board finds that the RO properly rated both service-connected lower extremity nerve disabilities at issue in this appeal under DC 8520 for neuritis with sciatic nerve involvement as shown by the weight of the medical evidence. See 2010 VA examination (competently finding both right and left lower extremity nerve conditions most likely involved the sciatic nerve; finding peripheral nerve exam revealed neuritis and sensory dysfunction demonstrated by decrease sensation bilaterally); see also September 2014 private electromyography (EMG) / nerve conduction study (NCS) report (noting study revealed chronic, inactive right L4-L5 radiculopathy). The Board recognizes that the 2016 VA examiner found that the Veteran had radiculopathy with bilateral involvement of the femoral nerve roots (L2 / L3L / L4). However, in subsequent remarks, the 2016 VA examiner expressly described the bilateral lower extremity nerve conditions as radiculopathy at the L4-5 level with pain mainly in the front of the lower extremities. Moreover, the 2016 VA examiner cited the 2014 private EMG / NCS results showing bilateral radiculopathies at the L4-L5 levels. In summary, the Board finds that the weight of the medical evidence shows that the Veteran’s right and left lower extremity nerve conditions manifested as bilateral radiculopathy / sciatic neuritis, and thus, DC 8520 is the appropriate Diagnostic Code for both disabilities. After a full review of the record, the claim is denied. The Veteran’s service-connected right and left lower extremity sciatic nerve disabilities each have manifested as no worse than symptoms approximating mild, incomplete paralysis, as shown by: subjective complaints of pain, feelings of numbness, and impairments with standing and walking; and objective evidence of decreased sensation, and at least one isolated, finding of 1+/4 reflexes upon examination, though with mostly normal lower extremity neurological tests, including generally normal motor functioning and reflexes. The Board affords great probative value to the competent and persuasive medical findings of the 2010 and 2016 VA examiners summarized below, which do not show symptoms closely approximating moderate, incomplete paralysis: • April 2010 VA examination (noting subjective complaints of constant tingling, numbness, abnormal sensation, pain, and weakness; noting objective evidence of abnormal sensory function, as shown by findings of decreased sensation in the right lateral knee region and bilateral feet; motor functioning was within normal limits on examination; lower extremity reflexes were normal on examination; diagnosing right and left peripheral neuropathy of the lower extremity, most likely involving the sciatic nerve bilaterally, based on subjective factors of pain and weakness and objective factors of lower extremity strength of 4/5 and decreased sensation); • August 2016 VA examination (noting subjective complaints of leg pain and limited ability to stand and walk; finding normal strength of lower extremities bilaterally on examination; finding normal reflexes of ankles and knees bilaterally; finding normal sensory examination of bilateral anterior thighs, thighs/knees, lower legs/ankles, and feet/toes; noting regular use of assistive devices such as wheelchair and walker; finding moderate, intermittent [usually dull] pain of both lower extremities; competently and persuasively explaining that Veteran had “mild” bilateral lower extremity radiculopathy because muscle power, sensations, reflexes, and straight leg raise [SLR] findings were normal, and she had symptoms but no signs). Furthermore, the Board assigns great probative value to the competent and persuasive medical findings of the Veteran’s private medical providers. Their mostly negative and normal clinical examination findings summarized below generally were consistent with the 2010 and 2016 VA examiners’ findings, e.g.: • February 2010 private neurology treatment record (noting subjective complaints of leg stiffness, pain, and feelings of legs “giv[ing] out;” upon neurological examination, motor functioning findings showed normal bulk, tone, and strength proximally and distally in both lower extremities; sensory functioning findings showed normal appreciation of light touch, pinprick, and vibration of the lower extremities; reflex test findings were 1+/4 throughout, including ankle jerks; Babinski sign was absent bilaterally). • August 2014 private neurology treatment record (noting subjective reports of constant pain in bilateral lower extremities worsened by prolonged walking, standing, and increased activity; noting reported feelings of numbness and tingling in bilateral lower extremities, as well as use of assistive devices such as canes and walkers as needed; objective examination findings generally were normal, e.g.: on motor examination of the lower extremities, findings were normal bilaterally; on sensory examination of the lower extremities, provider found no decreased sensation to light touch, pinprick, vibration, or proprioception; nor was there hyperesthesia to temperature in the lower extremities on sensory examination; patellar and achilles reflexes were 2 bilaterally). • September 2014 private EMG / NCS report (noting study revealed chronic, inactive right L4-L5 radiculopathy). • October 2014 private neurology treatment record (objective examination findings generally were normal, e.g.: lower extremity motor examination findings were 5/5 bilaterally; lower extremity sensory examination findings were negative / normal bilaterally; patellar and achilles reflexes were 2 bilaterally). • January 2015 private neurology treatment record (noting subjective reports of numbness and pain with throbbing sensation that was intense at times; on motor examination of the lower extremities, all findings were 5/5; on sensory examination of the lower extremities, all findings were normal / negative; patellar and achilles reflexes were normal on examination bilaterally); The Board recognizes that some medical providers have described the Veteran’s bilateral lower extremity nerve symptoms as “severe” or “moderate.” See February 2010 private treatment record (noting “[s]evere, intractable, secondary neuropathic pain”); see also 2016 VA examination report (noting bilateral lower extremity radiculopathy symptoms included “moderate,” intermittent pain). The Board does not doubt the credibility or sincerity of the Veteran’s reports of significant bilateral lower extremity pain. However, the February 2010 provider’s description of “severe” symptoms and the 2016 VA examiner’s reference to “moderate” symptoms, respectively, focused on pain, which is only one facet of her lower extremity sciatic nerve disabilities. The degree of pain alone, while relevant for rating purposes, is not dispositive of whether the overall symptomatology and impairment level most closely approximates moderate, incomplete paralysis under DC 8620. As discussed above, most of the objective neurological examination findings of record during the appeal period, including those by the February 2010 private provider and the 2016 VA examiner, were normal. Moreover, the February 2010 private provider’s description of the Veteran’s symptoms as “severe” is inconsistent with most of the objective findings in the April 2010 VA examination from just a few months later, which were mostly negative or normal, as summarized above. Likewise, most of the 2016 VA examiner’s lower extremity examination findings were normal, and the examiner expressly and persuasively explained why her overall symptomatology was “mild.” Likewise, the Board considered a February 2016 private treatment record, which includes a problem list describing her left-sided sciatica as “[s]evere.” However, this description of the overall severity of her left lower extremity nerve disability is inconsistent with the weight of the objective medical evidence from the 2016 VA examination, which was conducted just a few months after this encounter. Indeed, most of the objective clinical findings in the 2016 VA examination report were negative or normal. See, e.g., 2016 VA examination report. On balance, the Board affords more probative value to the weight of the medical evidence summarized above showing mostly normal examination findings, as well as the 2016 VA examiner’s thorough explanation why the overall severity of her lower extremity nerve disabilities was “mild,” than to these isolated references to “severe” or “moderate” neuropathic pain. The Board acknowledges the Veteran’s contention that her right and left lower extremity nerve disabilities are more severe than her initial, 10 percent disability ratings reflect. See, e.g., June 2011 NOD; September 2015 correspondence. However, the Board finds that the weight of the most probative, competent evidence summarized above supports the currently assigned, 10 percent initial ratings for both service-connected nerve disabilities. She primarily has described symptoms and impairments such as feelings of bilateral lower extremity pain, numbness, and tingling, as well as difficulty with walking, and there was objective evidence of reduced sensation. However, such sensory symptoms are consistent with the currently assigned, 10 percent initial ratings for sensory symptoms approximating mild, incomplete paralysis. She is competent to report symptoms and impairments such as pain, feelings of numbness, and difficulty walking. However, she is not competent to assess the overall, clinical severity of her lower extremity sciatic nerve conditions, which requires evaluation by a medical professional. Thus, Board finds that the 2010 and 2016 VA examiners’ and her private medical providers’ competent, clinical findings (which generally were normal or negative) to be more probative than her lay contentions regarding the degree of severity of her nerve disabilities. In conclusion, initial disability ratings greater than 10 percent for the Veteran's right and left lower extremity peripheral nerve conditions are denied. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record regarding either of the claims denied herein. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 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). REASONS FOR REMAND The Board finds that the AOJ did not substantially comply with the 2016 remand directives regarding the lumbar spine claim on appeal. Specifically, the 2016 remand directed the VA examiner to address whether the Veteran's service-connected lumbar spine disability had produced any incapacitating episodes, and if so, to describe the frequency and duration of those episodes categorized by year. However, the 2016 VA examiner’s findings regarding Intervertebral Disc Syndrome (IVDS) were inadequate for the following reasons. First, the 2016 VA examiner improperly found that the Veteran did not have IVDS, despite her established diagnoses of right lateral disc herniation with IVDS, multilevel degenerative discogenic disease, and bilateral lower extremity radiculopathy. See, e.g., 2010 and 2016 VA examinations. Second, the 2016 VA examiner’s findings regarding the presence of “incapacitating episodes” as defined under VA regulations were conclusory. Specifically, the examiner referenced the Veteran’s subjective reports of “incapacitating episodes,” which she described as painful flare-ups during certain physical activities. However, the VA examiner failed to explain whether such subjectively reported flare-ups constituted “incapacitating episodes” of IVDS for VA purposes, defined as periods of acute signs and symptoms requiring physician-prescribed bed rest and treatment by a physician. Third, the VA examiner failed to specify the frequency of such reported incapacitating episodes. In summary, an addendum medical opinion is needed to address these deficiencies. The matter is REMANDED for the following action: 1. Schedule a VA addendum medical opinion regarding the Veteran’s service-connected lumbar spine disability that addresses the following: a) At any point from February 2010 to the present, has the Veteran’s conceded IVDS diagnosis resulted in “incapacitating episodes,” defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician, and treatment by a physician? b) If the answer to question a) above is yes, then please specify the frequency of such episodes during each year from 2010 to the present (if applicable). The VA examiner must note his or her review of the complete claims file, including this remand. If any requested findings are not possible without resort to mere speculation, then the examiner must explain why. If the examiner finds that he or she cannot make any requested findings without another VA examination, then the AOJ must schedule one. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Janofsky, Associate Counsel