Citation Nr: 18155928 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 17-04 395 DATE: December 6, 2018 ORDER A 20 percent rating is granted for left lower extremity radiculopathy of the sciatic nerve for the period prior to April 20, 2017. A rating in excess of 40 percent for left lower extremity radiculopathy of the sciatic nerve for the period since April 20, 2017 is denied. REMANDED Entitlement to an initial disability rating in excess of 20 percent for degenerative arthritis of the spine, status post herniated disc with lumbar fusion, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. For the period prior to April 20, 2017, the competent and credible evidence shows that the Veteran’s left lower extremity radiculopathy is manifested by no more than moderate incomplete paralysis of the sciatic nerve. 2. From April 20, 2017, the competent and credible evidence shows that the Veteran’s left lower extremity radiculopathy is manifested by no more than moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial 20 percent rating for left lower extremity radiculopathy of the sciatic nerve have been met for the period prior to April 20, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520 (2017). 2. The criteria for a rating in excess of 40 percent for left lower extremity radiculopathy of the sciatic nerve have not been met for the period since April 20, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1990 to December 2003. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. Evaluation of left lower extremity radiculopathy of the sciatic nerve. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Here, the Veteran is in receipt of a 10 percent for radiculopathy of the left lower extremity involving the sciatic nerve, pursuant to Diagnostic Code 8520 for the period prior to April 20, 2017, and a rating of 40 percent thereafter. The Veteran is seeking higher ratings. Neurological impairments affecting the sciatic nerve are evaluated under Diagnostic Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia), using the criteria listed 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. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id. 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. A 20 percent disability rating is assigned for moderate incomplete paralysis. 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. Private treatment records dated in April 2015 show the Veteran’s complaints of pain, weakness, numbness, tingling, and stiffness. The Veteran described the pain as constant, dull, and aching. A diagnosis of sciatica was given. A September 2015 private treatment record also notes the presence of “significant left sciatica.” The Veteran was initially examined in January 2016 in connection with his claim for service connection. At that time, the VA examiner noted the Veteran’s muscle strength testing, deep tendon reflexes, and sensory examinations were all normal. There was no evidence of muscle atrophy. However, straight leg raising was positive, bilaterally. Consequently, the examiner noted mild pain in the left lower extremity and provided a diagnosis of mild radiculopathy. The Veteran was again examined by VA in April 2017. At that time, the VA examiner noted decreased findings regarding muscle strength and sensory examination of the left lower extremity. Deep tendon reflexes were absent in the left knee. Straight leg raising was positive in the left lower extremity. There was no evidence of muscle atrophy. The examiner ultimately determined the Veteran’s radiculopathy was moderately severe based on findings of severe pain and moderate paresthesias and dysesthesias. Affording the Veteran the benefit of the doubt, the Board finds that the left lower extremity radiculopathy of the sciatic nerve is best characterized as moderate for the period prior to April 2017, and moderately severe thereafter based on the findings of the April 2017 VA examination. C.F.R. § 4.124a, Diagnostic Code 8520. For the period prior April 2017, the Veteran’s private treatment records note “significant left sciatica,” which is indicative of moderate radiculopathy. However, there is no indication the left lower extremity radiculopathy of the sciatic nerve rises to the level of moderately severe or severe prior to the April 2017 VA examination. Similarly, for the period since April 2017, the evidence does not show that the left lower extremity radiculopathy of the sciatic nerve is severe in nature. In addition, at no time during the appeal period did the Veteran present symptoms resulting in marked muscle atrophy. Additionally, there is no evidence of foot paralysis. After a review of the entire record, the Board finds that an initial rating of 20 percent for left lower extremity radiculopathy prior to April 2017 is warranted. However, a rating in excess of 40 percent since that time is not. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 20 percent for a lumbar spine disability is remanded. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) held that when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire as to whether there are periods of flare-ups and, if so, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Sharp at 32. The Court further explained that in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination is “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). During the most recent VA examination in April 2017, it was noted the Veteran suffered from flare-ups. Although the report contains some information regarding the frequency and duration of such flare-ups, as well as certain types of functional impairment resulting therefrom, no estimation was provided regarding range of motion during flares. The Board notes that the April 2017 VA examiner indicated range of motion testing for the Veteran was unavailable due to pain. Nevertheless, in light of Sharp, a new examination is necessary. 2. Entitlement to a TDIU is remanded. A May 2016 private treatment record noted that the Veteran had been unemployed since December 2015. While part of this period is covered by a temporary total (100 percent) rating for convalescence, the evidence suggests the possibility of continued unemployment. Under the circumstances, the matter of the Veteran’s entitlement to a TDIU is part and parcel of the rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As the TDIU issue is inextricably intertwined with the Veteran’s back claim, it must also be remanded. These matters are REMANDED for the following action: 1. Associate all outstanding VA medical records with the claims file. 2. Send the Veteran (1) a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability); and (2) a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). Ask the Veteran to complete and submit both forms. 3. After the foregoing development has been completed to the extent possible, schedule the Veteran for an examination of his low back. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, if possible. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the claims remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel