Citation Nr: 18146074 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 18-21 904 DATE: October 30, 2018 ORDER Entitlement to an increased evaluation for radiculopathy of the left lower extremity, currently rated as 10 percent disabling, is denied. Entitlement to an increased evaluation for radiculopathy of the right lower extremity, currently rated as 10 percent disabling, is denied. REMANDED Entitlement to service connection for sleep disturbances is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for left and right shoulder disabilities is remanded. Entitlement to service connection for bilateral hearing loss disability is remanded. Entitlement to an evaluation in excess of 10 percent for a cervical spine strain is remanded. Entitlement to an evaluation in excess of 10 percent for left and right knee retropatellar pain syndrome is remanded. Entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD), major depression and alcohol abuse is remanded. Entitlement to an evaluation in excess or 10 percent for lumbosacral strain is remanded. Entitlement to a total disability evaluation due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From October 13, 2016 to present, the Veteran’s radiculopathy of the left lower extremity is demonstrative of mild symptoms; symptoms consistent with moderate incomplete paralysis are not shown. 2. Throughout the applicable window, October 13, 2015 to present, the Veteran’s radiculopathy of the right lower extremity is demonstrative of mild symptoms; symptoms consistent with moderate incomplete paralysis are not shown. CONCLUSIONS OF LAW 1. The criteria for a rating beyond the currently assigned 10 percent evaluation, for left lower extremity radiculopathy, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8524 (2017). 2. The criteria for a rating beyond the currently assigned 10 percent evaluation, for right lower extremity radiculopathy, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8524 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from February 1996 to January 2002. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). INCREASED RATINGS, GENERALLY Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany his service-connected left and right radiculopathy of the lower extremities. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). The Veteran filed an increased rating claim for his service-connected disabilities on appeal on October 13, 2016. As noted above, the Veteran’s entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.” Hart, 21 Vet. App. at 509. Therefore, in the present case, the Board will place a specific focus on evidence of record back to October 13, 2015. Entitlement to an increased evaluation for radiculopathy of the left and right lower extremities, each currently rated as 10 percent disabling, is denied. In October 2016, the Veteran submitted his VA Form 21-526EZ. Therein, the Veteran initiated his entitlement claims for increased ratings for his radiculopathy of the left and right lower extremities. The Veteran’s left and right lower extremity radiculopathy were rated as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8524. Under DC 8524 a 10 percent rating is warranted for mild incomplete paralysis of the internal popliteal (tibial) nerve in either lower extremity. A 20 percent rating is warranted for moderate incomplete paralysis of the tibial nerve in either lower extremity. And, a 30 percent rating is warranted for severe incomplete paralysis of the tibial nerve in either lower extremity. Under 38 C.F.R. § 4.124a, the term “incomplete paralysis” is defined as indicating 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Under 38 C.F.R. § 4.123, 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. 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. Under 38 C.F.R. § 4.124, neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In November 2016, the Veteran underwent a VA examination that addressed the severity of his radiculopathy of the left and right lower extremities. In the resultant report, Dr. BD noted November 2016 diagnoses for left and right lower extremity radiculopathy. Within the medical history portion of her report, BD noted that, “pain improves with position change & rest. He takes medications, but they do not help. Pain radiates to the lateral hips bilaterally. He has intermittent numbness/tingling in the entire leg and foot bilaterally at night and with prolonged sitting or standing.” Important to this Board analysis, when addressing the severity of the Veteran’s symptoms, Dr. BD noted that the Veteran demonstrated mild numbness, paresthesia and/or dysesthesia, bilaterally. Moderate or severe paresthesias and/or dysesthesias, or numbness was not shown. The Veteran was noted to have no intermittent or constant pain in either lower extremity. In contrast to the objective findings in the November 2016 examination report, in November 2016, VA received a correspondence from the Veteran’s spouse who reported that, “(d)ue to [the Veteran’s] pain and other issues, he can’t golf and barely can bowl. It is not enjoyable to him anymore.” The Veteran’s spouse continued with, “(h)e has chronic pain to the point where he can barely move. Pain medication does not seem to help. The pain is keeping him from doing daily activities.” In March 2017, the Veteran underwent a VA examination that addressed the current severity of his radiculopathy of the left and right lower extremities. In the resultant report, the VA provider noted diagnoses for left and right lower extremity radiculopathy associated with lumbosacral strain. At that time, the VA provider noted that the Veteran demonstrated mild symptoms including mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness that were attributable to his peripheral nerve condition(s). As with the prior examination, moderate or serve paresthesias, dysesthesias, and numbness was not observed by the examiner. Reflex examination was normal in both lower extremities. While decreased sensation in the foot and toes was noted bilateral, sensory examination of the thighs, knees, lower leg, and ankle were normal bilaterally. There was no trophic changes and the VA provider noted that that the Veteran displayed a normal gait and he did not require any assistive devices. The VA provider noted that the Veteran demonstrated mild incomplete paralysis of the popliteal (tibial) nerve, bilaterally. After careful and deliberate consideration of the claims file for the applicable claim window, October 13, 2015 to present, the Board concludes that the Veteran’s radiculopathy of left and right lower extremities is mild, under the criteria for 38 C.F.R. § 4.124a, DC 8524. While the Veteran has complained of various symptoms including pain in his lower extremities, the contemporaneous medical evidence shows that such symptoms are not indicative of more than mild incomplete paralysis in either lower extremity. Therefore, the Board finds that the preponderance of the evidence is against a finding that moderate or severe incomplete paralysis of either the left or right lower extremity is shown. Since the preponderance of the evidence is against these lower-extremity radiculopathy claims, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claims of entitlement to increased rating for radiculopathy of the left and right lower extremities must be denied, because the preponderance of the evidence weighs against his claims. The Board has considered whether “staged” disability ratings are warranted by the evidence of record. The symptomatology depicted by the evidence, however, has been essentially consistent throughout the claim period and fully contemplated by the assigned disability ratings. As such, there is no basis for staged disability ratings in connection with the Veteran’s service-connected radiculopathy of the left and right lower extremities. REASONS FOR REMAND Issuance of Statement of the Case. In a January 2017 rating decision, the agency of original jurisdiction (AOJ) denied the following issues: entitlement to service connection for sleep disturbances, fibromyalgia, left and right shoulder conditions, and right ear hearing loss; entitlement to an evaluation in excess of 10 percent for a cervical spine strain; entitlement to an evaluation in excess of 10 percent for left and right knee retropatellar pain syndrome; entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD), major depression and alcohol abuse; and, entitlement to an evaluation in excess or 10 percent for lumbosacral strain. In August 2017, the Veteran submitted a notice of disagreement (NOD) with these decisions. No Statement of the Case (SOC) has been issued regarding these claims; accordingly, an SOC must be sent to the Veteran on these issues. See Manlicon v. West, 12 Vet. App. 238 (1999). Entitlement to a total disability evaluation due to individual unemployability (TDIU) is remanded. In August 2017, the Veteran submitted his VA Form 21-8940. Thereby, the Veteran initiated his claim for entitlement to a total disability evaluation due to individual unemployability. He reported that a combination of all of his service connected disabilities prevented him from securing or following any substantially gainful occupation. The Veteran reported that he was currently working, but “reduced work hours due to disabilities, employer provides special accommodation.” Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for a total disability evaluation due to individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran has alleged that he unemployable due to a combination of service-connected disabilities including his radiculopathy, the Board concludes that the issue of TDIU is raised in conjunction with the pending appeal. Additional development is necessary before Board resolution of the Veteran’s TDIU claim. In January 2014, VA received a statement from the Veteran’s employer. Therein, NS reported that, “on occasion, (the Veteran) would come to work depressed. The episodes would last only a day or so and then (the Veteran) would seem to return to his normal self.” Also, NS reported that, “(t)hese episodes would again be only a day or two in length and would only happen once or at most twice a month.” In July 2014, VA received a statement from the Veteran, which addressed the symptoms associated with his service-connected PTSD. Therein, the Veteran posited that, “I have become increasingly irritable at work too, to the point where my boss noticed and had to talk to me. There are many days where I truly do not want to go to work or stay at work. I forget to do things for customers which causes me to lose clients and commission. I have missed many days at work due my pain and depression. I am a full time employee but only average around 30 hours a week. Finances are becoming an issue with missed work and less commission. In getting treatment, I have also missed multiple days at work.” In November 2016, VA received a statement from the Veteran’s spouse, MB. Therein, MB reported that, “(h)is work is suffering and he has had many days where he doesn’t even go to work or leaves early.” Also, MB observed that, “(w)ork has become very stressful for him. I am afraid that someone will upset him and he will end up hurting them. He seems to not be able to handle anything lately.” In February 2017, VA received another statement from the Veteran’s employer. Therein, the Veteran’s supervisor, NS, revealed that the Veteran has been the manager of the pro shop since August 2010. Also, NS opined that, “over the last several years, (the Veteran) is usually a great employee. On-time, performs his job with little supervision, and has grown our pro shop to be the best in town with a loyal following. His customers become his friends and hang out in the pro shop to find the latest news in the bowling world. However, on occasion, (the Veteran) would come to work depressed.” In September 2017, VA received another statement from the Veteran employer, NS. Therein, NS posited that, “(t)hroughout his employment, I have had some concerns with (the Veteran’s) well-being. He has tremendous mood swings that make it hard to know how to manage and with (the Veteran). As our pro shop manager, his job is to oversee two employees and to work constantly with customers, so it is import for (the Veteran) to be consistent in his messages and delivery every day. On his good days, (the Veteran) is the best at what he does; however, at other times, he is almost impossible to be around and his depression not only interferes with his performance but those around him instead of giving their best, are usually just trying to stay away from him. Stresses to his outside life greatly affect his job performance. His depression, which he has communicated about openly, has made (the Veteran) go from a top performer to having to leave work immediately on some days. As his employer, having (the Veteran) not able to show up for work or call out on the spur of the moment or have him leaving during a shift makes it hard to run a business and staff correctly.” In September 2017, VA received a statement from the Veteran’s spouse, which addressed the assigned rating for his service-connected posttraumatic stress disorder (PTSD). Import to this Board analysis, the Veteran’s spouse revealed that, “(h)e has pulled away from just about everyone because he seems to not be able to keep a normal relationship with anyone. He struggles at work and seems so unhappy when he is there. It's difficult to get him to talk to me about anything, so I can't help anymore like I used to.” In September 2017, VA received a statement from Dr. PJ, which addressed the severity of the Veteran’s service-connected PTSD symptoms. Important to this Board analysis, Dr. PJ revealed that, “(t)he Veteran is employed 36 to 40 hours per week at B and B Lanes, a bowling alley. He has a very difficult time with this job, as it requires a lot of people contact, and he misses a lot of work due to his PTSD symptoms, but he is working for a friend and so his friend is very tolerant. (The Veteran) is the Pro-shop manager, and he also teaches and coaches bowling.” At that time, Dr. PJ opined that, “(i)f he were not working for a friend, it is more likely than not, that the Veteran would be unable to work at all due to his fragile mental condition.” The Board notes that, to date, the various lay statements, to include the Veteran’s, and the medical opinion from Dr. PJ only address the Veteran’s service-connected acquired psychiatric disabilities. On remand, the AOJ should obtain a medical opinion that considers ALL of the Veteran’s service-connected disabilities. Because, to date, the record does not reflect that the symptoms that accompany the Veteran’s PTSD, Major Depressive Disorder and Alcohol Abuse Disorder generate sporadic or marginal employment and, thereby, prevent substantially gainful employment. See 38 C.F.R. § 4.16 (a); Moore, 1 Vet. App. at 358. The matters are REMANDED for the following action: 1. The AOJ should furnish the Veteran a SOC as to the following issues: entitlement to service connection for sleep disturbances, fibromyalgia, left and right shoulder conditions, and hearing loss; entitlement to an evaluation in excess of 10 percent for a cervical spine strain; entitlement to an evaluation in excess of 10 percent for left and right knee retropatellar pain syndrome; entitlement to an evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD), major depression and alcohol abuse; and, entitlement to an evaluation in excess or 10 percent for lumbosacral strain. Only if the Veteran perfects a timely appeal as to these claims by filing a Substantive Appeal should these matters be returned to the Board for the purpose of appellate disposition. 2. Schedule the Veteran for a general medical examination with a qualified medical professional to assess the functional impact of the Veteran’s service-connected disabilities in an occupational setting. The Veteran’s claims file, together with any employment information, should be reviewed by the examiner. A full rationale must be provided for any opinion offered. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD RLBJ, Associate Counsel