Citation Nr: 18146433 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-18 333 DATE: November 1, 2018 ORDER The appeal as to entitlement to service connection for sinusitis is dismissed. The appeal as to entitlement to service connection for chronic pain syndrome is dismissed. The appeal as to entitlement to service connection for left ventricular hypertrophy is dismissed. The appeal as to entitlement to service connection for diverticulitis, also claimed as constipation, is dismissed. The appeal as to entitlement to service connection for gastroesophageal reflux disease (GERD) is dismissed. The appeal as to entitlement to an initial compensable rating for residual scars is dismissed. Entitlement to an increased rating of 20 percent, but no higher, for radiculopathy of the right lower extremity is granted. Entitlement to an increased rating of 20 percent, but no higher, for radiculopathy of the left lower extremity is granted. REMANDED Entitlement to an increased rating in excess of 10 percent for degenerative disc disease L4-5 is remanded. Entitlement to service connection for left knee degenerative joint disease is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to a total disability rating due to individual unemployability is remanded. FINDINGS OF FACT 1. In a May 2018 written statement, prior to the promulgation of a decision in the appeal, the Veteran gave notice of his desire to withdraw his pending appeals regarding entitlement to service connection for chronic sinusitis, chronic pain disease, left ventricular hypertrophy, diverticulitis, and GERD, and an increased rating for residual scars. 2. The Veteran’s left and right lower extremity radiculopathy are productive of moderate, incomplete paralysis bilaterally. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal have been met in regard to the claim for service connection for chronic sinusitis. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal have been met in regard to the claim for service connection for chronic pain syndrome. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of an appeal have been met in regard to the claim for service connection for left ventricular hypertrophy. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of an appeal have been met in regard to the claim for service connection for diverticulitis, also claimed as constipation. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 5. The criteria for withdrawal of an appeal have been met in regard to the claim for service connection for GERD. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 6. The criteria for withdrawal of an appeal have been met in regard to the claim for an increased rating for residual scars. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 7. The criteria for entitlement to an initial rating of 20 percent, but no higher, for radiculopathy of the right lower extremity have been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 8. The criteria for entitlement to an initial rating of 20 percent, but no higher, for radiculopathy of the left lower extremity have been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from January 1979 to November 1986 and June 1989 to January 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. The Veteran submitted a notice of disagreement (NOD) in September 2013. A statement of the case was issued in March 2016. The Veteran perfected a timely substantive appeal via VA Form 9 in April 2016. The Board notes that the Veteran’s September 2013 NOD clearly specified that he did not wish to appeal the assigned rating for his service-connected sleep apnea. Accordingly, in the absence of a NOD placing the issue in contention, a claim for an increased rating for sleep apnea is not before the Board. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201 (2017). Withdrawal of Appeals The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In this case, via written statement from his representative, the Veteran withdrew from appellate consideration the issues of entitlement to service connection for chronic sinusitis, chronic pain disease, left ventricular hypertrophy, diverticulitis, and GERD, and an increased rating for residual scars. Thus, there remain no allegations of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review the appeals of the issues of entitlement to service connection for chronic sinusitis, chronic pain disease, left ventricular hypertrophy, diverticulitis, and GERD, and an increased rating for residual scars. Increased Rating The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claims. See, e.g., Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to an increased rating in excess of 10 percent for radiculopathy of the left and right lower extremities. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.2, 4.3, 4.7, 4.10. A veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1; Schafrath, 1 Vet. App. at 589. The Board must consider entitlement to “staged” ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. 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. 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. In rating peripheral nerve disability, 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. 38 C.F.R. § 4.123. Here, the Veteran contends that higher ratings are warranted for his service-connected left and right lower extremity radiculopathy, currently evaluated as 10 percent disabling under Diagnostic Code 8520, relating to the sciatic nerves. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is assigned a 10 percent rating. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis, which is characterized by foot dangle and drop, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost. Id. Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although a medical examiner’s use of descriptive terminology such as “mild” is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. After thorough review of the evidence of record, the Board finds that an evaluation of 20 percent, but no higher, is warranted for left and right lower extremity radiculopathy under Diagnostic Code 8520. An Independent Medical Evaluation was conducted in July 2012. The Veteran reported monthly visits to his pain management physician for narcotic medication monitoring and overall pain management. He described continuous moderate to severe levels of pain in the low back that radiates to his buttocks and down the bilateral legs to the feet with numbness, tingling, and mild weakness occasionally. Private treatment records from December 2012 contain the Veteran’s complaints of pain radiating from the low back down to his right lower extremity. He stated that the pain was 6/10 on average and 7/10 at worst. He described burning, stabbing, numbness, and tingling. In August 2013, the Veteran underwent a VA examination. He reported a dull, severe pain in his low back that radiated down the back of his leg to the balls of his feet. He described numbness and paresthesias in both lower extremities. He stated that flare-ups occur a couple of times per year. The last one lasted for approximately 36 hours. The examiner noted moderate intermittent pain, mild paresthesias/dysesthesias, and mild numbness bilaterally. Overall, he categorized the severity of the bilateral radiculopathy as mild. The examiner stated that the bilateral radiculopathy of the lower extremities should not preclude light duty or sedentary employment, as long as the Veteran is afforded the ability to take intermittent breaks from prolonged sitting. Physically strenuous labor, such as that which would require straining to lift heavy objects, walking long distances, or prolonged standing without breaks, would be precluded by the condition. The Board concludes that the Veteran’s symptoms as reflected by the evidence of record more nearly approximate moderate incomplete paralysis. He described pain at 6/10 on average in December 2012 treatment records. Upon VA examination in August 2013, he categorized the pain as moderate and severe. He reported symptoms including burning, stabbing, numbness, and tingling. The August 2013 examiner opined that the condition precluded strenuous labor, walking long distances, and prolonged standing. The examiner described the overall severity of the radiculopathy as mild. The Veteran is competent to provide evidence about his disability; for example, he is competent to describe symptoms of pain and numbness related to his radiculopathy. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has considered his lay statements in increasing the evaluation to 20 percent for bilateral lower extremity radiculopathy. In denying higher disability ratings, the Board has considered his statements regarding pain, numbness, and the restriction on activities. While he is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions regarding whether his symptoms meet the next higher rating criteria under VA regulations. See, e.g., Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Indeed, the Veteran does not contend and the evidence does not support a finding that the bilateral lower extremity radiculopathy manifests through moderately severe or severe incomplete paralysis, nor is there any indication of complete paralysis of the bilateral lower extremities. Accordingly, the Board finds that a rating of 20 percent, but no higher is warranted for radiculopathy of the left and right lower extremities. In reaching the above conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, to the extent the Veteran’s claim has been denied, the preponderance of the evidence is against the grant of ratings higher than those assigned herein. See 38 U.S.C. § 5107(b). The issue of entitlement to a TDIU is addressed in the remand portion of the decision, below. The Veteran has not raised any other issues with respect to the increased rating claim for the service-connected bilateral lower extremity radiculopathy, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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 1. Entitlement to an increased rating in excess of 10 percent for degenerative disc disease L4-5 is remanded. While the record contains a VA examination regarding the Veteran’s lumbar spine disability, the Board finds that the Veteran must undergo another examination in light of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Additionally, in the May 2018 brief submitted by his representative, the Veteran indicated that he continues to receive treatment from Premier Spine and Pain Center for his back pain. Upon remand, the RO must obtain authorization from the Veteran and request these records. 2. Entitlement to service connection for left knee degenerative joint disease is remanded. The Veteran contends that service connection is warranted for a left knee condition. Specifically, he asserts that his service-connected lumbar spine disability caused him to become obese, resulting in his left knee condition. In the August 2013 VA examination report, the examiner stated that there is no objective evidence that the service-connected lumbar spine condition resulted in a chronic severe gait disturbance of the type which could contribute to degeneration of any other joints. He noted that the Veteran’s weight increased by 125 pounds between 2000 and 2012 and acknowledged that aging and obesity are well-established causes of degenerative joint disease in the knee. However, he stated that the lumbar spine disability did not cause the knee condition. The examiner stated that the lumbar spine disability did not prevent the Veteran from exercising effectively, as he was capable of water walking or other low impact exercise. Therefore, he concluded that the left knee condition was not the result of the Veteran’s inability to exercise effectively due to his lumbar spine disability. However, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for left knee degenerative joint disease because the VA examiner did not address the issue of aggravation by the service-connected lumbar spine condition. Additionally, the Veteran has raised the issue that obesity may be an “intermittent step” between a service-connected disability and a current disability that may be service connected on a secondary basis. A VA General Counsel opinion states that obesity is not a disease for service connection purposes. VAOPGCPREC 1-2017 (Jan 6, 2017). Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. Id. at 2. To grant service connection, the adjudicators would have to resolve the following issues: (1) whether a service-connected disability caused a veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and (3) whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. Id. at 9-10. Therefore, a medical opinion is necessary to determine whether the service-connected lumbar spine condition caused the Veteran’s obesity and whether his obesity caused his left knee degenerative joint disease. While the August 2013 VA examiner discussed the Veteran’s ability to exercise in his opinion, the issue of a nexus between the service-connected lumbar spine condition and obesity should be addressed in the terms set forth in the recent GC opinion. 3. Entitlement to service connection for hypertension is remanded. The Veteran contends that service connection is warranted for hypertension. Specifically, he asserts that his service-connected lumbar spine disability caused him to become obese, resulting in his hypertension. In the August 2013 VA examination report, the examiner stated that the Veteran’s hypertension was not related to or aggravated by, his service-connected lumbar spine disability or any associated pain. However, he opined that the hypertension more likely related to a combination of the Veteran’s genetic predisposition for the condition and his obesity. The examiner stated that obesity and weight gain are major risk factors for hypertension. As discussed above, the Veteran has raised the issue that obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. Accordingly, a medical opinion is necessary to determine whether the service-connected lumbar spine condition caused the Veteran’s obesity and whether his obesity caused his hypertension. 4. Entitlement to service connection for erectile dysfunction is remanded. For the reasons set forth above, this issue is remanded for further development. 5. Entitlement to a total disability rating due to individual unemployability is remanded. The claim for a TDIU is inextricably intertwined with the issue of entitlement to an increased rating for the lumbar spine disability and service connection claims. Therefore, adjudication of the TDIU claim would be premature at this juncture. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Premier Spine and Pain Center. Make two requests for the authorized records from this provider, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination of the current severity of his service-connected lumbar spine disability. (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the degenerative disc disease L4-5 and discuss the effect of the lumbar spine disability on any occupational functioning and activities of daily living. (d.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left knee degenerative joint disease is at least as likely as not aggravated beyond its natural progression by his service-connected lumbar spine disability. (a.) The claims file and copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder has been reviewed. 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s assertion that his obesity may be an intermittent step between the service-connected lumbar spine disability and his left knee degenerative joint disease, hypertension and erectile dysfunction. (a.) The claims file and copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder has been reviewed. (b.) Following review of the claims file, and examination of the Veteran if deemed necessary, the examiner is requested to address the following: i. Opine as to whether it is at least as likely as not that the service-connected lumbar spine condition caused the Veteran to become obese, to include as due to pain, effects of medication, and decreased ability to exercise. ii. Opine as to whether it is at least as likely as not that any obesity was a substantial factor in causing the diagnosed left knee degenerative joint disease, hypertension, or erectile dysfunction. iii. Opine as to whether it is at least as likely as not that the Veteran would have left knee degenerative joint disease, hypertension, or erectile dysfunction if he were not obese. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.