Citation Nr: 1806460 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-09 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for his post discectomy L5-S1 in excess of 10 percent prior to January 2, 2014, and in excess of 40 percent thereafter. 2. Entitlement to an initial compensable rating prior to January 2, 2014, and in excess of 10 percent thereafter for left lower extremity radiculopathy. 3. Entitlement to service connection for hypertension. 4. Entitlement to total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Karl Kazmierzak, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to November 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal from May 2011, June 2011, and January 2014 rating decisions of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a May 2017 Board hearing and a transcript of this hearing is of record. The issues of entitlement to an increased rating for his post discectomy L5-S1 in excess of 10 percent prior to January 2, 2014, and in excess of 40 percent thereafter, entitlement to service connection for hypertension, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During the period of August 24, 2012, to January 1, 2014, the Veteran's left lower extremity radiculopathy manifested as pain and numbness. 2. During the period of January 2, 2014, to August 19, 2014, the Veteran's left lower extremity radiculopathy manifested as moderate paresthesia of the sciatic nerve. 3. During the period from August 20, 2014, the Veteran's left lower extremity radiculopathy manifested by moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no higher, for left lower extremity radiculopathy, have been met from August, 24, 2012, to January 1, 2014. 38 U.S.C. § § 1155, 5107 (West 2014); 38 C.F.R. § § 3.102, 3.159, 4.59, 4.124a, Diagnostic Code (Code) 8520 (2017). 2. The criteria for a 20 percent rating, but no higher, for left lower extremity radiculopathy, have been met from January 2, 2014 forward. 38 U.S.C. § § 1155, 5107 (West 2014); 38 C.F.R. § § 3.102, 3.159, 4.124a, Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Legal Criteria Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will 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 claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, Code 8520. II. Analysis The Veteran is currently service-connected for left lower extremity radiculopathy rated as noncompensable prior to January 2, 2014, and 10 percent thereafter. The Veteran is seeking entitlement to an initial compensable rating for his left lower extremity radiculopathy prior to January 2, 2014, and in excess 10 percent thereafter. The Veteran is currently rated under Code 8599-8520. The hyphenated code indicates that the Veteran's left lower extremity radiculopathy is analogous to incomplete paralysis of the sciatic nerve. i. Prior to August 24, 2012 to January 1, 2014 The Board finds that the Veteran is entitled to an initial 10 percent rating, but no higher, for his left lower extremity radiculopathy. A March 2012 VA treatment record noted the Veteran had pain and a burning sensation in his left leg, glute, knee, and ankle. The treatment provider noted the Veteran was unable to do heel or toe walk due to loss of balance especially in the left foot. Therefore, as the Veteran reported pain and burning of the left lower extremity the Board finds a 10 percent rating is warranted for mild impairment. The Board finds a 20 percent rating under Code 8520 is not warranted as the evidence of record does not demonstrate incomplete paralysis of the sciatic nerve which is moderate. There is no evidence of motor or reflex impairment that more closely approximates moderate impairment. Thus, an initial rating of 10 percent is warranted for the period of August 24, 2012 to January 1, 2014. ii. January 2, 2014, to August 19, 2014 For the period of January 2, 2014, to August 19, 2014, the Board finds a 20 percent rating is warranted under Code 8520 for incomplete paralysis of the sciatic nerve which is moderate. The Veteran was provided with a January 2, 2014, VA examination. The examiner noted the Veteran had moderate paresthesia and/or dysesthesias in the left lower extremity and severe numbness. The examiner noted the Veteran had moderate radiculopathy of the sciatic nerve. The Veteran was noted to have active movement against some resistance in left ankle plantar flexion, ankle dorsiflexion, and great toe extension with no muscle atrophy. The Veteran had decreased sensation in his left thigh, knee, lower leg, ankle, foot, and toes. The Veteran was negative for the straight leg test. The examiner noted the Veteran had no further neurological abnormalities or intervertebral disc syndrome. As noted above a 20 percent rating under Code 8520 is granted for incomplete paralysis of the sciatic nerve which is moderate. Resolving reasonable doubt in favor of the Veteran, the totality of the evidence, specifically, the Veteran's January 2014 VA examination indicated the Veteran had moderate paresthesia and/or dysesthesias in the left lower extremity and moderate radiculopathy symptoms in the sciatic nerve. The Board finds a higher 30 percent rating under Code 8520 is not warranted as the evidence of record does not show incomplete paralysis of the sciatic nerve which is severe. While the Veteran reported severe numbness of the left lower extremity in his January 2014 VA examination the evidence of record does not demonstrate the Veteran's radiculopathy caused severe incomplete paralysis of the sciatic nerve. Specifically, the January 2014 examination indicated the Veteran had decreased sensation in his left thigh, knee, lower leg, ankle, foot, and toes, but that sensation was not absent. Muscle strength and reflexes were normal. In addition the examiner concluded that the Veteran's symptoms of radiculopathy of the sciatic nerve were overall moderate rather than severe. As such, a 30 percent rating under Code 8520 would not be warranted. Therefore, the Veteran is entitled a 20 percent rating for moderate left lower extremity sciatic nerve paralysis from January 2, 2014, to August 19, 2014. iii. From August 20, 2014 The Veteran is currently rated as 10 percent disabling for the period from August 20, 2014, to the present. The Board finds a 20 percent rating is warranted for this period. The Veteran was most recently provided with an August 2014 VA examination. The Veteran's left knee extension, ankle plantar flexion and ankle dorsiflexion was noted to have active movement against some resistance; a slight decrease from the January 2014 VA examination. The Veteran did not present with muscle atrophy. The Veteran was noted have a hypoactive left ankle and decreased sensation in left thigh, knee, lower leg ankle, foot and toe; again, a slight decrease from the January 2014 VA examination. As such a 20 percent rating is warranted. Absent findings consistent with weakness or diminished or hyperactive reflexes, a higher 30 percent rating under Code 8520 would not be warranted as the evidence of record does not indicate the Veteran was experiencing symptoms that more closely approximate moderately severe incomplete paralysis of the sciatic nerve. Specifically, the August 2014 examiner noted the Veteran had decreased sensation in his left lower extremity but did not find incomplete paralysis of the left sciatic nerve. As such, the Board finds the Veteran is entitled to a 10 percent rating and no higher for the period beginning August 20, 2014. ORDER Entitlement to an initial 10 percent rating for the Veteran's service-connected left lower extremity radiculopathy for the period of August 24, 2012, to January 1, 2014, is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an increased 20 percent rating for the Veteran's service-connected left lower extremity radiculopathy for the period of January 2, 2014 forward is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran is seeking a rating for his post discectomy L5-S1 in excess of 10 percent prior to January 2, 2014, and in excess of 40 percent thereafter. The Veteran's most recent VA examination in connection with his service-connected back disability was in January 2014. The examiner conducted range of motion testing. 38 C.F.R. § 4.59 requires that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158 (2016). To be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Id. That is, the joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible with the range of the opposite undamaged joint. The Veteran's most recent VA examination in January 2014 included range of motion testing, however, it does not appear that testing was performed for pain for both active and passive motion, in weight-bearing and nonweight-bearing, as required by 38 C.F.R. § 4.59. Thus the claims must be remanded in order to obtain a new VA examination that includes the appropriate testing under 38 C.F.R. § 4.59. In addition, the Board notes the Veteran is seeking entitlement to a rating in excess of 40 percent for the period beginning January 2, 2014. While ratings in excess of 40 percent under 38 C.F.R. § 4.71a Code 5243 do not require range of motion findings the VA examination requested on remand could provide information relevant to the Veteran's claim for a rating in excess of 40 percent, such as a finding of unfavorable ankylosis of the entire thoracolumbar spine, therefore both periods on appeal must be remanded at this time. The Veteran is also seeking entitlement to service connection for hypertension. The Veteran was most recently provided with a VA examination in June 2011. The examiner performed a physical examination and concluded the Veteran's obesity for over a period of over 20 years and a 2010 x-ray showing hypertrophy are findings associated with chronic hypertension rather than an acute diagnosis and is therefore not etiologically related to his service-connected diabetes mellitus, type II. The Board finds the June 2011 VA opinion to be inadequate. The examiner made a finding that the Veteran's hypertension was chronic rather than acute but did not provide a rationale as to why this indicated his hypertension was not etiologically related to his service-connected diabetes mellitus, type II, or his active service. As such, an addendum opinion must be obtained on remand. Additionally, as the Veteran's claim for TDIU is inextricably intertwined with his claim for entitlement to an increased rating for his back disability it must be deferred until further development is completed. Moreover, it appears the Veteran continues to receive treatment at a VA medical center and as such any and all outstanding VA treatment records must be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file any and all outstanding VA treatment records. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to assess the severity of the service-connected back disability. The claims folder and all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed. The examiner must describe all impairment of the Veteran's back disability, and make determinations regarding range of motion, including any additional functional impairment. The examinations must address active and passive motion, weight-bearing and nonweight-bearing information, as required by 38 C.F.R. § 4.59. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If the Veteran reports flare-ups, the examiner should ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made, to include whether there are additional tests or information that might be sufficient to estimate such additional functional loss during flares. 3. The AOJ must contact the VA examiner who examined the Veteran in June 2011 in connection with his claim for service-connection hypertension and request an addendum opinion. The claims file should be made available to and reviewed by the examiner. Based on the examination and review of the record, the examiner should address the following: (a) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's hypertension is etiologically related to his active service to include his exposure to Agent Orange? The examiner must specifically reference the National Academy of Sciences (NAS) Veterans and Agent Orange Updates, to include in 2010 and 2012, which stated that there was "limited or suggestive" evidence of an association between hypertension and herbicide exposure. In addition, the examiner must discuss whether they find the NAS Updates to be persuasive and weigh the relative risks presented by the Veteran's presumed Agent Orange exposure and other relevant factors. (b) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's hypertension was caused by his service-connected diabetes mellitus, type II? (c) If the answer to (b) is no is it at least as likely as not that the Veteran's service-connected diabetes mellitus, type II aggravated his hypertension? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. If the June 2011 VA examiner is unavailable, another qualified examiner should be requested to provide the same opinions. If a new VA examination needs to be conducted in order to obtain the opinions, then one should be scheduled. All indicated tests and studies should be undertaken. 4. Then adjudicate the Veteran's claims. If the benefits sought remain denied, the Veteran and his attorney must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs