Citation Nr: 18156743 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 08-33 987A DATE: December 11, 2018 ORDER An initial rating higher than 20 percent for service-connected left lower extremity sciatic nerve radiculopathy is denied. REMANDED Service connection for a headache disorder, to include migraines, is remanded. A total disability rating based on individual unemployability (TDIU) prior to September 15, 2014, is remanded. FINDING OF FACT The Veteran’s left lower extremity sciatic nerve radiculopathy has not resulted in moderately severe incomplete paralysis. CONCLUSION OF LAW The criteria for an initial rating higher than 20 percent for service-connected left lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.123, 4.124, 4.124a, 4.124a Diagnostic Code 8520 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1980 to November 1986. This matter is on appeal from July 2009 rating decision of the Department of Veterans Affairs (VA). Service connection for migraine headaches was denied, as was a TDIU. In September 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board of Veterans’ Appeals (Board). In June 2013, the Board remanded the aforementioned issues for additional development. A TDIU was granted effective September 15, 2014, in an October 2014 rating decision. The issue remains on appeal for the period prior to this date, however. The Board remanded the aforementioned issues for additional development again in July 2015 and for a third time in November 2017. In June 2013, the Board granted service connection for left lower extremity radiculopathy as associated with the Veteran’s service-connected lumbar spine degenerative disc disease with central disc bulge (hereinafter “back disability”). This matter additionally is on appeal from the October 2014 rating decision which effectuated the Board’s decision, assigning an initial rating of 10 percent. The rating was increased to 20 percent in a February 2018 rating decision. The issue remains on appeal, however, because an even higher initial rating is possible. AB v. Brown, 6 Vet. App. 35 (1993). June 2018 and October 2018 rating decisions continued the initial 20 percent rating. The former also granted service connection for left lower extremity femoral nerve radiculopathy, which is not on appeal. For clarity, the issue on appeal has been recharacterized as involving the sciatic nerve. The Board’s November 2017 remand noted that the Veteran had initiated an appeal concerning the period of a temporary 100 percent rating due to treatment for a service-connected disability requiring convalescence and special monthly compensation during that same period (November 2016 rating decision). It further was explained that the Board did not have jurisdiction over these issues because they still were being processed below. Nothing has changed. Accordingly, the Board notes the aforementioned anew. Preliminary Matters VA has a duty to notify a claimant seeking VA benefits. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Notice must be provided prior to initial adjudication of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should submit. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice of how ratings and effective dates are assigned also must be provided. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist a claimant seeking VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes, as suggested by the duty to notify, aiding the claimant in the procurement of relevant records whether they are in government custody or the custody of a private entity. 38 U.S.C. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3). A VA medical examination also must be provided and/or a VA medical opinion procured when necessary for adjudication. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). That service connection, the original benefit sought for the left lower extremity sciatic nerve radiculopathy, was granted in an October 2014 rating decision is reiterated. Notice of downstream issues to include a higher initial rating is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA treatment records and private treatment records, some of which are dated during the appeals period, are available. Social Security Administration records also are available, but they are dated well before this period. In April 2010, April 2011, September 2014, and June 2018, the Veteran underwent relevant VA medical examinations. Each concerned her service-connected back disability, and addressed her left lower extremity sciatic nerve radiculopathy as related thereto. Neither the Veteran nor her representative has raised any duty to notify or assist deficiencies. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (procedural arguments that are not raised need not be addressed); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist); Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (concerning the duty to notify). Finally, the individual who conducts a hearing has duties to explain the issues on appeal and suggest submission of outstanding evidence. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Service connection, not a higher initial rating, for left lower extremity sciatic nerve radiculopathy was the issue on appeal at the time of the Veteran’s hearing. The aforementioned duties therefore do not apply. In any event, potential sources of evidence were explored. Some subsequently became available, by submission and pursuant to the Board’s remands. Higher Initial Rating Ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A rating is assigned under the Rating Schedule by comparing the extent to which a claimant’s disability impairs her ability to function under the ordinary conditions of daily life, as demonstrated by her symptoms, with the criteria for the disability. Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The disability’s history and all other relevant evidence is to be considered. 38 C.F.R. §§ 4.1, 4.6. Examinations are to be interpreted and, if necessary, reconciled. 38 C.F.R. § 4.2. If two ratings are potentially applicable, the higher rating is assigned if the disability more nearly approximates the criteria required for it. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability, or any other point, is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Different initial ratings may be assigned for different periods of time for the same disability, a practice known as staging the rating. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). If a disability has worsened, consideration therefore must be given to when the worsening occurred. 38 C.F.R. § 4.124a addresses neurological disabilities. The Veteran’s service-connected left lower extremity sciatic nerve radiculopathy is rated pursuant to Diagnostic Code 8520 thereunder. Diagnostic Code 8520 is for paralysis of the sciatic nerve. It, as well as Diagnostic Codes 8620 and 8720 for neuritis and neuralgia of the sciatic nerve, assigns a 10 percent rating for mild incomplete paralysis. Moderate incomplete paralysis is assigned a 20 percent rating, while moderately severe incomplete paralysis is assigned a 40 percent rating. Severe incomplete paralysis with marked muscular atrophy merits a 60 percent rating. The maximum rating of 80 percent is reserved for complete paralysis. Complete paralysis exists when the foot dangles and drops, no active movement is possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis indicates a degree of lost or impaired function substantially less than that for complete paralysis. 38 C.F.R. § 4.124a, opening paragraph for diseases of the peripheral nerves. Mild, moderate, moderately severe, and severe are not defined. Mild generally means “not severe.” Merriam-Webster’s Collegiate Dictionary, 787 (11th ed. 2003). Moderate generally means “tending toward the mean or average amount.” Id. at 798. Severe generally means “of a great degree” or “serious.” Id. at 1140. When involvement is wholly sensory, the rating is limited to the mild or at most the moderate degree. Id. The maximum rating for neuritis characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain which is at times excruciating is equal to that for severe incomplete paralysis. 38 C.F.R. § 4.123. For neuritis not characterized by such organic changes, the maximum rating is equal to that for moderately severe incomplete paralysis. Id. The maximum rating for neuralgia, characterized by dull and intermittent pain, finally is equal to that for moderate incomplete paralysis. 38 C.F.R. § 4.124. Only the most relevant evidence must be discussed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Accordingly, the discussion below is limited to it and any additional evidence required to address any arguments raised by the Veteran or her representative. Scott, 789 F.3d at 1375; Robinson v. Peake, 21 Vet. App. 545 (2008). At the outset, July 2011 private diagnostic testing is notable. It reflects that the Veteran’s left lower extremity sciatic nerve radiculopathy is superimposed upon a very mild distal sensory neuropathy. Differentiation of the symptoms attributable to each has not been undertaken. The same is true with respect to those of the Veteran’s left lower extremity sciatic nerve radiculopathy versus her restless legs/restless leg syndrome, diagnosed in VA treatment records as early as July 2007, and versus her left lower extremity femoral nerve radiculopathy, diagnosed at the February 2018 VA medical examination. Reasonable doubt thus is resolved in her favor such that all symptoms are deemed due to sciatic nerve radiculopathy. Mittleider v. West, 11 Vet. App. 181 (1998). As such, all potentially relevant symptoms will be taken into account. The Veteran primarily has reported left leg pain, paresthesia (numbness, burning, tingling), and weakness. She also has reported that her left leg loses feeling and goes to sleep, feels heavy, has tight muscles which spasm, has leg cramps/tremors, has lost mass, and is almost non-responsive when her reflexes are checked. The effects of these symptoms as well as those of her back disability, per her reports, are gait disturbance and being able to stand or walk only for a few minutes. Treatment records show that the Veteran’s sensation was intact to touch and pain in November 2006, full in May 2009, and grossly normal to pain (pinprick) in June 2009. It was normal at the September 2014 VA medical examination, where her constant pain (which may be excruciating at times) was moderate and there was no intermittent pain (usually dull), paresthesias and/or dysesthesias, or numbness. Treatment records also show that the Veteran’s sensation was diminished in the L5-S1 distribution in December 2007, however. They go on to show that it was diminished in a non-dermatomal pattern in June 2008 and March 2009 as well as impaired with no further specification in July 2016. It was diminished to light touch from the knees down, in a stocking-like pattern, at the April 2010 VA medical examination. The Veteran’s sensation was normal in her upper anterior thigh and thigh/knee but diminished in her lower leg/ankle and foot/toes at the June 2018 VA medical examination. At that time, she had no constant pain but moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. No deficits were found to pain or light touch (cotton) at the April 2011 VA medical examination, but the results were noted to be equivocal. With respect to strength, muscle atrophy never has been found. Further, muscle strength was normal per November 2006, June 2016, and November 2016 treatment records as well as the September 2014 examination. Yet, treatment records also reflect diminished distal strength in December 2007, diffuse giveaway weakness in June 2008 and March 2009, and weakness without further specification in October 2013. The Veteran’s strength additionally was 4/5 in January 2009, June 2009, July 2009 (knee), July 2013, July 2016 (ankle and great toe – anterior tibialis and extensor hallucis longus muscles), and March 2018 (great toe). At the April 2010 examination, it ranged from 4/5 (hip) to 4+/5 (knee, ankle, great toe). It finally was 4/5 at the June 2018 examination. The Veteran’s reflexes per treatment records were normal (2+) in December 2007, June 2008, August 2008, March 2009, June 2009, June 2016, and November 2016. They also were normal at the September 2014 and June 2018 examinations. The Veteran’s reflexes nevertheless were decreased in the knee per July 2007, March 2009, and May 2009 treatment records. They also were decreased in the ankle in March 2009. At the April 2010 examination, her knee reflex was normal but her ankle reflex was 1+. Treatment records finally document positive results as well as negative results to straight leg raise (SLR) testing, with the positive outnumbering the negative. One result in September 2016 was equivocal. Positive results were obtained at the April 2011 and September 2014 examinations, while the June 2018 examination result was negative. The Veteran’s disability overall was characterized as moderate at the September 2014 examination and as mild at the June 2018 examination. Neither the April 2010 examination nor the April 2011 examination included such an overall characterization. The Veteran’s representative contends a moderately severe characterization is most appropriate, but no explanation was provided as to why. A 20 percent initial rating currently is assigned to the Veteran’s service-connected left lower extremity sciatic nerve radiculopathy. Based on the above, the Board finds that a higher initial rating is not warranted. The criteria for even the next highest initial rating of 40 percent indeed are not more nearly approximated. There is no limitation to rating above a particular level because the Veteran’s involvement in not wholly sensory and she manifests symptoms of neuritis characterized by organic changes (constant pain, sensory disturbances, and loss of reflexes) as well as symptoms of neuralgia (dull and intermittent pain). Her symptoms have fluctuated somewhat over time. Yet, they never have been anything more than moderate. The reflexes in the Veteran’s left leg have been normal far more often than they were decreased. Even when there were decreased, it was by a smaller as opposed to a larger amount (1+ instead of absent or 0). While the Veteran’s left leg muscle strength has been decreased far more often than it has been normal, this decrease also was by a smaller as opposed to a larger amount (4 or 4+/5 instead of 0-3/5). Sensation in her left leg usually has been decreased. Yet, like reflexes and muscle strength, it has only been decreased and never has been absent. There, in sum, is nothing about the Veteran’s demonstrated reflexes, muscle strength, or sensation which indicates or even suggests her disability is moderately severe. The same is true regarding her fluctuating SLR testing results. In characterizing her disability overall, the only options were mild, moderate, and severe. There was no option for moderately severe, in other words. A moderate characterization therefore could be used to support a rating for moderately severe incomplete paralysis. Yet, the Veteran’s moderate characterization cannot be used in this manner given the above. That her other characterization was mild also goes against doing so. None of the evidence, in conclusion, is dispositive on its own. Yet, it all supports the determination that the Veteran’s disability is akin to moderate incomplete paralysis at most (and therefore not akin to moderately severe incomplete paralysis). This preponderance of the evidence means there is no doubt to resolve in her favor. Greater weight is afforded to it in comparison to the Veteran’s reports, to the extent they include a contention that she is entitled to a higher initial rating than that currently assigned. Indeed, determining the appropriate rating for her disability is medically complex, requiring knowledge of the neurological system as well as the conduction and interpretation of specific tests. Jandreau v. Nicholson, 492 F.3d at 1372, n.4 (Fed. Cir. 2007). An initial rating higher than 20 percent is denied. Further discussion is not necessary because no other issues have been raised. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (issues need not be addressed unless they are raised). REASONS FOR REMAND Service Connection—Headache Disorder, to Include Migraines For a headache disorder, to include migraines, the Board unfortunately finds that more additional development is needed. This issue essentially is in the same place as it was at the time of the last remand in November 2017. A new VA medical opinion for a headache disorder was obtained, as directed, in June 2018. It was against service connection, but like the December 2015 VA medical opinion did not include an adequate rationale. It simply was noted that a diagnosis was not made during service, but thereafter. A diagnosis during service is not necessary. 38 C.F.R. § 3.303(d). There was no discussion of the Veteran’s reports that her headaches began during service and have persisted ever since, despite the instruction (in bold) to do so. Arrangements must be made for another VA medical opinion which is adequate and complies with this instruction. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). TDIU Prior to September 15, 2014 The Board also finds that the issue of a TDIU prior to September 15, 2014, is in essentially the same place as it was at the time of the July 2015 and November 2017 remands. A determination must be deferred until all pending service connection and higher rating issues, which as of right now is just service connection for a headache disorder, to include migraines, are resolved. This is because whether a TDIU should be considered on a schedular basis or an extraschedular basis, which requires referral to the Director of the Compensation and Pension Service, depends on the ratings assigned for service-connected disabilities. 38 C.F.R. § 4.16(a, b). As such, the TDIU issue is inextricably intertwined with the issue of service connection for a headache disorder, to include migraines. Harris v. Derwinski, 1 Vet. App. 180 (1991). The aforementioned issues are REMANDED for the following action: 1. Arrange for a supplemental VA medical opinion to be rendered regarding the Veteran’s headache disorder. An appropriate medical professional specifically should review the claims file and opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s headache disorder began during or otherwise is related to her service. A detailed explanation is required in support of this opinion. In this regard, discussion of medical principles as they relate to the medial and lay (non-medical) evidence and of medical literature would be of assistance to the Board. Discussion of the Veteran’s reports that her headaches began during service and have persisted ever since is required. 2. Then readjudicate service connection for a headache disorder, to include migraines and any other service connection or higher rating issues that may arise. Following that, readjudicate a TDIU prior to September 15, 2014. Consider whether referral should be made to the Director of the Compensation and Pension Service in doing so. If any determination made is unfavorable (partially or wholly) to the Veteran, issue a supplemental statement of the case. Allow her and her representative time to respond before returning this matter to the Board. No action is required of the Veteran until she is notified by VA. However, she is advised that she has the right to submit additional argument or evidence, whether herself or through her representative. Kutscherousky v. West, 12 Vet. App. 369 (1999). All remands by the Board or the United States Court of Appeals for Veterans Claims finally are to be handled expeditiously. 38 U.S.C. §§ 5109B, 7112. This is especially true for this matter because it has been advanced on the Board’s docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Becker, Counsel