Citation Nr: 18157512 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 09-15 102A DATE: December 12, 2018 ORDER Entitlement to a separate rating of 10 percent, but no more, for radiculopathy of the right lower extremity associated with the Veteran’s service-connected spondylolisthesis of the lumbar spine is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s service-connected spondylolisthesis of the lumbar spine has shown to manifest with neurological deficits resulting in mild radiculopathy in the right lower extremity. CONCLUSION OF LAW The criteria for a separate rating of 10 percent, but no more, for lumbar radiculopathy, right, associated with the Veteran’s service-connected spondylolisthesis of the lumbar spine have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.124, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1962 to December 1965, and in the United States Air Force from October 1966 to December 1967. This case comes before the Board of Veterans’ Appeals (the Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The November 2007 rating decision awarded the Veteran a rating of 40 percent for his service-connected spondylolisthesis of the lumbar spine. These matters were previously before the Board in August 2015. At that time, the Board remanded the decision to the Agency of Original Jurisdiction (AOJ) to complete additional development. They returned to the Board in April 2017, at which time it denied a schedular rating in excess of 40 percent disabling for service-connected spondylolisthesis of the lumbar spine, and granted a separate rating of 20 percent disabling, but no more, for radiculopathy of the left lower extremity associated with the Veteran’s service-connected spondylolisthesis of the lumbar spine. The issue of entitlement to a TDIU was remanded for extraschedular consideration. In March 2018, the United States Court of Appeals for Veterans Claims (the CAVC) granted a joint motion for partial remand, thus vacating, in part, the April 2017 decision denying entitlement to a schedular rating in excess of 40 percent for service-connected spondylolisthesis of the lumbar spine, to the extent the Board found that a separate rating for right lower extremity radiculopathy was not warranted. The Court did not disturb the part of the Board decision granting a separate rating of 20 percent, but no more, for radiculopathy of the left lower extremity, as it is favorable to the Veteran. 1. Entitlement to a separate rating of 10 percent, but no more, for radiculopathy of the right lower extremity associated with the Veteran’s service-connected spondylolisthesis of the lumbar spine is granted. Legal Criteria The VA’s Schedule for Rating Disabilities is used to determine disability ratings once a disability is service-connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the Rating Schedule, diagnostic codes (DC) are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is currently rated under DC 5239-5243 for his service-connected spondylolisthesis of the lumbar spine. 38 C.F.R. § 4.71a. When evaluating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). The Board notes that the rating schedule does not define the terms “mild,” “moderate,” or “severe.” Therefore, the Board must evaluate the evidence of record and reach a decision that is equitable and just in consideration of all of the relevant evidence. See 38 C.F.R. § 4.6. Radiculopathy is rated under Diagnostic Code 8520. Diagnostic 8520 assigns an 80 percent rating for complete paralysis of the sciatic nerve. This is marked by dropping and dangling of the foot, no active movement of the muscles below the knee, and weakened or, rarely, absent knee flexion. Incomplete paralysis is also compensable. Mild impairment is 10 percent disabling, moderate impairment is 20 percent disabling, moderately severe impairment is 40 percent disabling, and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. 38 C.F.R. § 4.124a, Code 8520. The schedule also provides that when there is no motor impairment, and the nerve involvement is wholly sensory, a maximum evaluation of moderate impairment should be assigned. 38 C.F.R. § 4.124a. The Board notes the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that “although interest may affect the credibility of testimony, it does not affect competency to testify”). The Board has reviewed the claim file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on relevant evidence and on what this evidence shows, or fails to show, on the claim. 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 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Factual Background The Board’s analysis is limited to the Veteran’s entitlement to a separate rating for right lower extremity radiculopathy. Upon careful review of the record, the Board finds that a separate rating is warranted. A. VA examinations The Veteran was afforded three VA examinations during the period on appeal. The February 2007 VA examination noted pain on a daily basis in the Veteran’s lower back, with radicular symptoms into the left buttock and left groin area. There was occasional numbness noted in the left leg. His straight leg raises were “equivocally” positive on the right. At the October 2012 VA examination, the Veteran claimed low back pain and more towards left side. His pain goes down to the left leg to the foot, mostly across the medial foot. He has some numbness that goes down his leg into the groin as well. His straight leg raising test for the right side was negative. He was noted to have mild intermittent pain, paresthesias and/or dysesthesias, and numbness in his right lower extremity, but not constant pain. He had no other signs or symptoms of radiculopathy. Sciatic nerve root involvement was noted, but the examiner did not specify, whether this was on the right or left. The severity of his radiculopathy on the right side was noted to be mild. No other neurological abnormalities were noted. The examiner remarked that the EMG showed that the Veteran’s complaints of numbness in his feet were not due to radiculopathy, but rather peripheral neuropathy likely secondary to his diabetes, and that his history is consistent with some radicular type pain radiating down the legs, with the left worse than the right. The January 2016 examination noted that the Veteran experiences daily pain with episodes of sharp radiating pain into the groin area and left lower extremity. The Veteran had symptoms related to radiculopathy, including mild paresthesias and/or dysesthesias, as well as numbness in the right lower extremity. However, his straight leg raising test for the right side was negative. Constant pain and intermittent pain were not noted in the right lower extremity. The examiner noted the Veteran had a positive left straight leg test, sciatic nerve root involvement on the left side. There was no ankylosis or episodes of incapacitation, and no other neurological abnormalities. B. Evidence required to consider The Board has been directed to consider and weigh the results of four positive straight leg tests from the following: the February 2007 VA examination; a November 2010 outpatient note; a January 2012 outpatient note; and an April 2012 outpatient note. The February 2007 VA examination, as mentioned above, states that straight leg raises on the right were noted to be equivocally positive. The November 2010 outpatient note states that straight leg testing was positive bilaterally at 30 degrees. The January 2012 outpatient note states that straight leg testing was positive bilaterally at 45 degrees. The April 2012 outpatient note states that straight leg testing was positive on the right at 30 degrees. In addition, the Board has been directed to consider the following: (a) a May 2002 VA examination, with noted complaints of pain radiating from the Veteran’s back to his right and left sides; (b) an August 2010 VA podiatry treatment record, which notes complaints of numbness and pain in the right foot starting a couple years previously; (c) a January 2012 VA treatment record, at which the Veteran reported significant chronic low back pain with intermittent sciatica, which was bilateral, but more recently, “worse on the right,”; and (d) another VA treatment record from three months later, where the Veteran again reported low back pain with right sciatica to the knee. The May 2002 VA examination noted that the Veteran “complain[ed] of pain in the low back region in the center of his back sometimes radiating to the right and left side, his right side greater than his left side.” The Board also notes that the Veteran’s straight leg raise was negative bilaterally at 90 degrees, his supine straight leg raise is positive on the left at 45 degrees for back pain, and negative on the right at 80 degrees. The August 2010 podiatry record states that the Veteran has a history of diabetes mellitus for about eight years, and about five years ago, he developed some numbness and pain in the left foot, and several years later in the right foot, as well. He reported chronic low back pain, which seems to affect his left side more than his right. The examiner reported some spotty areas of decreased sensation on the left foot more so than the right, mainly in the forefoot area and into the arch. He was assessed as having a history of diabetes mellitus with numbness and tingling. The January 2012 VA treatment record states that the Veteran has significant chronic low back pain throughout the day with intermittent sciatica. It was noted that the sciatica has been bilateral, but recently, worse on the right with pain radiating down to the knee intermittently. No loss of bowel or bladder control was noted. The April 2012 VA treatment record notes that the Veteran continues to experience low back pain with intermittent left sciatica into the foot, intermittent right sciatica to the knee. This record also reports that straight leg testing was positive on the right at 30 degrees and on the left at 30 degrees. C. Additional evidence In addition, the Board notes the following evidence in the claim file. An April 1999 private treatment record states that the Veteran has had low back pain for the past three to four weeks. He stated that he woke up with it one morning. He also noticed that when the low back becomes painful the discomfort extends into the left testicular area. However, he had no radiating pain, weakness, or numbness. An August 2003 evaluation states that the Veteran has had low back pain for about 10 years, and occasionally has radiation in the left lateral thigh to the knee. He has no numbness and he feels like his left leg is weak. September 2003 VA treatment records state that Veteran complained of low back pain at least five years, which intermittently radiates to the left leg with numbness in the feet that gets worse with activity. An assessment notes lumbar pain with radicular signs and symptoms and abnormal x-ray, and another record states that the Veteran complains of low back pain with left-side sciatic. A December 2004 VA treatment record states that the Veteran is experiencing worse back pain, and he complained of numbness radiating down his left anterior knee and anterior thigh, which increases with cough, laugh, sneeze, or Valsalva. A January 2005 private chiropractic treatment record states that the Veteran was seen for lower left back pain, and left groin area symptoms, which were aggravated by walking and sitting. He described the onset of the low back symptoms occurring in the last two to three weeks with left groin pain every day with sharp increases of pain. A July 2006 VA treatment record, states that lumbar stenosis, non-radicular signs and symptoms at present. A September 2006 private examination notes a history of lumbar pain, including pain radiating to the posterior left thigh and to the left groin. The Veteran has had no pain radiating to the feet and no surgery. However, the examiner diagnosed the Veteran with lumbar degenerative joint disease, “no radiculopathy.” In February 2007 correspondence, the Veteran stated that he is experiencing an increase in lower back pain and the shortening of his left leg with sharp pain in the groin area at times. More often pain radiates from his lower back, inside his left thigh area and groin down into his left knee. An October 2007 VA treatment record states that that Veteran’s lower back pain has been increasing over three months, with pain in the left groin radiating into the left anterior thigh. Another states that the Veteran complained of low back pain increasing over the summer. The pain currently radiates into the left groin and leg into the left knee. He also sometimes has tingling in the left ankle and foot and that the radiation symptoms are new. A December 2007 VA treatment record, notes peripheral neuropathy – lumbar radicular versus diabetic peripheral neuropathy versus a combination and orders an EMG-NCV. An April 2008 VA treatment record states that the Veteran’s back pain is getting worse, and his pain is in the lower left back and radiates on the inside of his leg to the ankle. In an October 2008 statement, the Veteran indicated that his records show the shortening of his left leg, and includes a pinching in the groin area on the left side. The Veteran also stated that his latest self-evaluation shows a dark blue discoloring at the base of his spine, increasing in size. Pain radiates from this area, out into his left side lower back and down into his left leg and groin area. A September 2009 VA treatment record states that the Veteran reports that his back pain is worsening. It is focused in the lower back, radiating to the left lower extremity, but also radiating into the left lower extremity. A June 2010 VA treatment record states that the Veteran has frequent, but still intermittent left sciatica. A November 2010 VA treatment record states that the Veteran continues to have low back pain with sciatica down the left leg to ankle. The Veteran stated that sometimes “my left foot turns in or I drag it.” VA treatment record from November 2010 notes positive straight leg testing only on the left at 30 degrees. A December 2010 VA treatment record notes an MRI spine, lumbar without contrast, with an indication of lumbar radiculopathy. Pseudo-disc bulge causing severe right and moderate right and moderate left neural foraminal narrowing. Another December 2010 VA treatment record notes low back pain and left sciatic reporting, left foot drag. Another December 2010 VA treatment record notes the results of the EMG, which indicates no electrodiagnostic evidence for lumbosacral radiculopathy left side. On examination, the Veteran’s symptoms appear to be derived from the hip. A later December 2010 VA treatment record notes left leg pain, left hip DJD versus lumbar radiculopathy. An April 2012 VA treatment record that states that the Veteran continues to have low back pain with left sciatica into the foot, intermittent, and right sciatica to the knee, intermittent. In his application for TDIU from October 2012, the Veteran identified his disability as lower back injury, with sharp pains down left leg. In a November 2012 statement, the Veteran wrote that he has received a variety of pain pills to alleviate the increasing pain down his left leg, back into his crotch, now across his lower back, both sides. The Veteran also wrote that he has difficulty walking, three of the statin-type drugs ruined the nerve endings, mostly in his right foot. He has had a lot of sore feet, pain, stinging in his soles, and loss of balance. A VA treatment record from December 2012 notes positive straight leg testing only on the left at 30 degrees. A December 2012 VA treatment record states that the Veteran has intermittent pain in the left lower back, posterior hip. It radiates down his buttocks and hurts more when he is trying to walk. Straight leg testing was positive on the left at 30 degrees. In an April 2013 statement, the Veteran wrote that he has an abnormal gate, left leg, which has become shorter over the years causing a pinching in his left groin area, radiating forward from his lower left back and hip area to extend across his entire lower back to his right side. A June 2013 VA podiatry treatment record states that the Veteran has pain in his lower back that radiates down the inside of his legs to his feet. Another June 2013 VA treatment record notes that the Veteran continues to have problems with low back pain with intermittent sciatica to both legs. Straight-leg testing was positive bilaterally at 45 degrees. In April 2018, the Veteran signed an affidavit stating that he experienced pain radiating from his back to both of his legs for at least ten years. He elaborated that he experiences tingling from his lower back to his groin down to his feet, and that he experiences constant pain in his legs and feet. Also, subsequent to the Court’s remand, the Veteran’s representative submitted a private medical opinion in November 2018. The private physician did not examine the Veteran, but reviewed the claim file and spoke with the Veteran over the phone in September 2018. Based on the review, the physician opined that the Veteran suffers from radiculopathy of the right lower extremity secondary to his service-connected lumbar spine disability, and that his right lower extremity radiculopathy is considered severe. Analysis The Board has made careful review of the record, and finds that the evidence shows that the Veteran’s spondylolisthesis of the lumbar spine results in radiculopathy in the right lower extremity. Therefore, a separate rating for the Veteran’s right lower extremity radiculopathy is warranted. Under the rating criteria, a mild impairment warrants a 10 percent rating. The Board finds, based on the medical and lay evidence of record, that a 10 percent rating is appropriate. The VA examinations demonstrate that the Veteran’s radicular symptoms manifest most consistently on his left side, but not his right. Indeed, the February 2007 VA examination noted pain on a daily basis in the Veteran’s lower back, with radicular symptoms into the left buttock and left groin area. By contrast, his straight leg raises were “equivocally” positive on the right. The October 2012 VA examination, noted that the Veteran claimed low back pain, more towards the left side. His straight leg raising test for the right side was negative. However, impairment on the right was present, as he was noted to have mild intermittent pain, paresthesias and/or dysesthesias, and numbness in his right lower extremity. The pain was not constant. In addition, the severity of his radiculopathy on the right side was noted to be mild. These symptoms and severities were echoed in the January 2016 VA examination, which noted that the Veteran had symptoms related to radiculopathy, including mild paresthesias and/or dysesthesias, as well as numbness in the right lower extremity. His straight leg raising test for the right side was negative. Constant pain and intermittent pain were not noted in the right lower extremity. As noted above, the Board has also been directed to consider and weigh the results of four positive straight leg tests: the February 2007 VA examination; the November 2010 outpatient note; the January 2012 outpatient note; and the April 2012 outpatient note. The Board has considered these results and finds that they support a finding that the Veteran experiences radiculopathy in his right lower extremity. However, the Board has also considered the evidence as whole, which contains records from November 2010 and December 2012 noting positive straight leg testing only on the left, as well as results from the October 2012 and January 2016 VA examinations, which show negative straight leg tests for the right. In addition, the Board notes that the February 2007 examination straight leg raises were only “equivocally” positive on the right. Given the inconsistency of these tests, the Board finds that a 10 percent rating, but no higher is appropriate. The Board has also been directed to consider: a May 2002 VA examination; an August 2010 VA podiatry treatment record; a January 2012 VA treatment record; and a VA treatment record from three months later. At the outset, the Board notes that the May 2002 VA examination is outside the period on appeal. Nevertheless, the Board acknowledges that in this examination the Veteran contended that the radiating back pain was worse on the right than the left. A similar claim can be found in the January 2012 VA treatment record, which states that the Veteran’s sciatica is bilateral, but recently worse on the right. However, these two examples are inconsistent with the record as whole, which overwhelmingly reflects that the Veteran’s pain is greater on his left side. Indeed, in correspondence from the Veteran himself, almost all references to radiating pain involve his left side. This is mirrored in the examinations and treatment records. The Board also notes that the May 2002 examination, despite contentions of radiating pain, shows that the Veteran’s straight leg raise was negative bilaterally at 90 degrees, and his supine straight leg raise was only positive on the left. In addition, the January 2012 treatment record notes only “intermittent sciatica,” which is consistent with a 10 percent rating. Indeed, the contention that the Veteran’s pain is greater on the right, is undermined by the August 2010 podiatry record, which states that the Veteran reported chronic low back pain that seems to affect his left side more than his right. The examiner reported some spotty areas of decreased sensation on the left foot more so than the right, mainly in the forefoot area and into the arch. The April 2012 VA treatment record also appears to indicate more severe symptoms on the left as it reported intermittent left sciatica into the foot, as opposed to the intermittent right sciatica only reaching the knee. The Board acknowledges the private medical opinion from November 2018. Again, the Board notes that this physician did not examine the Veteran, but rather reviewed the claim file and spoke with the Veteran over the phone. Based on the review, the physician opined that the Veteran suffers from radiculopathy of the right lower extremity secondary to his service-connected lumbar spine disability, and that his right lower extremity radiculopathy is considered severe. However, the examiner does not provide an explanation as to why he classifies the Veteran’s right lower extremity radiculopathy as severe. As discussed in detail above, the Veteran’s sciatica on his right side has, at most, been described as intermittent, and the severity of his symptoms has been classified by the VA examiners as no more than mild. The Veteran has consistently reported symptoms on his left side, which are reflected in his current 20 percent rating for left lower radiculopathy. Under the rating criteria for the sciatic nerve, a moderate impairment warrants a 20 percent rating and the consistency and degree of the impairment in the left lower extremity warrants a moderate impairment rating as the pain is severe and persistent. By contrast, a preponderance of the evidence indicates that the Veteran’s right lower extremity is not as severe as his left, and a 10 percent rating is appropriate. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran’s ratings combined now meet the percentage threshold for a schedular TDIU. However, the Board finds that additional development is needed prior to final adjudication of entitlement. Specifically, the Board requests clarification regarding the Veteran’s dates of employment. The Veteran claims that he last worked in 2005. Associated with the record is a statement showing the Veteran’s FICA earnings “for years requested.” The last year shown is 2005. It is unclear to the Board, which years were requested, and why the summary ends at 2005. Upon remand, the Board requests that earnings from 2005 to present be reflected. If no earnings are available, this should be clearly noted. Accordingly, the matter is REMANDED for the following action: 1) After obtaining any necessary consent from the Veteran and/or his representative, obtain clarification of the Veteran’s earnings from 2005 to the present. If none are of record, this should be clearly noted in the claim file. All attempts to comply with this directive should be noted in the claim file. CONTINUED ON NEXT PAGE 2) If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Foster, Associate Counsel