Citation Nr: 18152057 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 11-24 019 DATE: November 20, 2018 ORDER Entitlement to an initial disability rating of 40 percent, but no higher, for right-sided sciatica and radiculitis is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc disease with disc herniation (low back disability) is remanded. FINDING OF FACT The Veteran’s right-sided sciatica and radiculitis has been manifested by moderately severe symptoms. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for right-sided sciatica and radiculitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8620. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 1963 to March 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction currently resides with the Detroit, Michigan RO. In November 2014, a Travel Board hearing was held before the undersigned; a transcript is of record. In an October 2017 decision, the Board denied the Veteran’s claims. However, the Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, in May 2018, the Court vacated and remanded the Board’s decision. The case is now returned for appellate review. 1. Entitlement to an initial disability rating in excess of 10 percent for right-sided sciatica and radiculitis. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that 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 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The Veteran’s right-sided sciatica and radiculitis has been evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8620. Neurological impairments affecting the sciatic nerve are evaluated under Diagnostic Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia), using the criteria under Diagnostic Code 8520. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term “incomplete paralysis” indicates 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. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, for incomplete paralysis, a 10 percent disability rating is assigned for mild incomplete paralysis. If the condition is considered “moderate,” a 20 percent disability rating is provided. If the condition is considered “moderately severe,” a 40 percent disability rating is provided, and a 60 percent rating is warranted for conditions considered “severe, with marked muscular atrophy.” The Board observes that the words “mild,” “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. In April 1998, the Veteran described pain down from the lower back through the right posterior thigh and calf, down to his ankle and described it as “very bad, along with complete numbness of the foot on the right side.” An MRI showed evidence of a herniated disc at L5-S1 to the right side, which the physician noted may be the cause of some of the Veteran’s problems. Additionally, an electromyography (EMG) showed evidence of right S1 radiculopathy and moderate chronic ongoing denervation. In May 2004, the Veteran reported pain which radiated down his right lower extremity and the posterior aspect of the thigh and calf into the lateral part of his foot. He described the pain as aching with associated numbness, tingling, and weakness. On physical examination, the physician noted that sensation appeared to be decreased in the S1 distribution and compared a contemporary MRI to a 1998 EMG study, finding that the Veteran’s nerve root appeared to be thickened. The impression was that the Veteran appeared to have an S1 radiculopathy on the right. The Veteran underwent a VA examination in July 2009. The Veteran reported tingling in his right foot at the ball of the foot that he described as feeling like a cramp in his anterior lateral thigh and then up his entire leg. He stated that if he took a long drive, his entire right leg was “very painful.” The examiner noted decreased pinprick sensation on the toes and commented that there was electrodiagnostic evidence of right S1 radiculopathy with moderate chronic and ongoing denervation. The examiner also noted electrodiagnostic evidence suggestive of a mild demyelinating sensorimotor polyneuropathy affecting the right lower extremity. The Veteran also underwent VA examinations in May 2015 and April 2016. However, as the Veteran’s representative argued, both of these examinations are inadequate. With respect to the May 2015 VA examination, the examiner noted that she did not review the Veteran’s VA claims file but only reviewed his military service treatment records, military service personnel records, and his VA treatment records. The examiner then noted that the Veteran did not receive VA health care, but was under the care of a private physician. As the examiner did not review the Veteran’s private treatment records and use them in her assessment, the Board finds this examination inadequate. The April 2016 VA examination was conducted by the same examiner as the May 2015 examination. While the examiner found in the May 2015 examination that the Veteran had mild radiculopathy, the examiner did not note any radicular pain or other signs and symptoms of radiculopathy in the April 2016 VA examination. In a July 2016 statement, the Veteran stated that he told the examiner that he was unable to drive for more than 1.5 hours because his foot goes numb. Private treatment records from September 2018 contain the Veteran’s report of numbness in his lower extremities for the past 2-3 years, which he described a worsening. EMG testing revealed a moderate reduction of the compound muscle S potential in the right peroneal nerve. In the right tibial nerve, testing showed severe reduction of the compound muscle action potential. The physician diagnosed the Veteran with chronic stable lumbosacral radiculopathy likely affecting the L5 and/or S1 nerve root. The Board finds that affording the Veteran the benefit of doubt, the probative medical evidence of record indicates that his right sided sciatica and radiculitis manifests as moderately severe, which warrants a 40 percent evaluation. The Board is aware that the July 2009 VA examiner described moderate denervation, however, more recent medical evidence suggests that the Veteran’s disability is more adequately described as moderately severe. The record does not indicate the Veteran presents with muscle atrophy; therefore, an evaluation of 60 percent is not warranted. Although cognizant that a VA clinician noted that the disability was severe, the higher rating of 60 percent requires organic changes not shown by the competent evidence of record. See 38 C.F.R. § 4.123, 4.124a. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc disease with disc herniation (low back disability) is remanded. In May 2018, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion to remand the Veteran’s claims. The Court noted that the Board stated that the Veteran did not report flare-ups in the VA examinations of record but that the Board failed to discuss the Veteran’s July 2016 statement indicating that he did have flare-ups. The Board will afford the Veteran another opportunity for a VA examination to assess the severity of his left knee disability, to include the severity of his flare-ups consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” The Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. at 10. In the May 2015 and April 2016 VA examinations, the examiner merely noted that the Veteran did not report flare-ups and did not provide a response for additional functional loss during a flare-up. These examinations are thus insufficient given the Court’s recent holding in Sharp, in that the examiner did not report any attempts to elicit lay statements from the Veteran regarding symptoms associated with flare-ups. As such, the Board finds that new VA examination should be provided addressing the Veteran’s additional functional loss during a flare-up for his service-connected degenerative disc disease, lumbar spine, with disc herniation. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected lumbar spine disability. This examination should be conducted by a different examiner than the examiner who provided the May 2015 and April 2016 examinations. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner should indicate in his/her report whether or not such was reviewed. All necessary tests and studies should be accomplished. The examination report must include a complete rationale for all opinions expressed. The VA examiner should conduct range of motion testing of the Veteran’s lumbar spine, expressed in degrees in active motion, passive motion, weight-bearing, and nonweight-bearing. The VA examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination associated with the lumbar spine. If pain on motion is observed, the VA examiner should indicate the point at which pain begins. To the extent possible, the VA examiner should express any additional functional loss in terms of additional degrees of limited motion. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his left knee symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel