Citation Nr: 18137125 Decision Date: 09/20/18 Archive Date: 09/20/18 DOCKET NO. 11-31 790A DATE: September 20, 2018 ORDER Entitlement to service connection for hypertension, to include as due to service-connected diabetes mellitus, is granted. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. REMANDED Entitlement to an initial rating in excess of 10 percent prior to April 30, 2015, and in excess of 20 percent thereafter, for lumbar spondylosis and degenerative osteoarthritis, also referred to as low back strain/condition, is remanded. FINDINGS OF FACT 1. The probative evidence of record shows that the Veteran’s hypertension is aggravated by his service-connected diabetes. 2. The probative evidence of record does not show that the Veteran’s radiculopathy of the right lower extremity has manifested to moderate or severe incomplete paralysis or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1153, 5103, 5103A, 5107(b); 38 C.F.R §§ 3.102, 3.310. 2. The criteria for an initial disability rating of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from February 1970 to November 1971. In May 2018, the Veteran was provided a hearing with the undersigned Veterans Law Judge, and a transcript of the proceeding is of record Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Hypertension The Veteran contends that his hypertension is due to or aggravated by his service-connected diabetes. Service connection on a secondary basis essentially requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (2017). In November 2016, the Veteran received a VA examination. Although the examiner was not able to determine the baseline severity of the Veteran’s condition, the examiner opined that the Veteran’s hypertension was at least as likely as not aggravated beyond its natural progression by his diabetes mellitus. The examiner rationalized that diabetes mellitus is known to result in vasculopathy, which would have an aggravating effect on hypertension. The examiner explained that vasculopathy is damage to a blood vessel by a disease process, which in the current case is the Veteran’s diabetes mellitus, affecting the lumen or walls of a vessel. The examiner provided that his diabetes mellitus in turn contributed to the clinical presentation and progression of hypertension. The Board finds the November 2016 VA examination and opinion to be of significant probative value in determining whether the Veteran’s hypertension is aggravated by his service-connected diabetes mellitus. The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Here, the examiner showed he had knowledge of the Veteran’s background and based the opinion on the Veteran’s lay contentions, review of the medical evidence of record, medical literature, and a full examination of the Veteran. Additionally, a complete and thorough rationale was provided for the opinion rendered and is consistent with the medical evidence of record. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Additionally, there is no competent contrary medical opinion of record. Thus, the Board concludes that the evidence is for the claim and the benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2017). Where there is a question as to which of two ratings should 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. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Radiculopathy of the Right Lower Extremity The Veteran is currently rated as 10 percent disabling for his radiculopathy of the right lower extremity under Diagnostic Code (DC) 8520 for the Sciatic Nerve. Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires evidence of complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The Board notes that the terms “mild,” “moderate” and “severe” are not defined. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as “mild” or “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In October 2008, the Veteran received a VA examination. The Veteran described his pain radiating to his right lower extremity as an achy, sore, and throbbing sensation that was at a 3 to 4 in severity daily, and with flare-ups that were a 6 to 7 in severity. The Veteran then described his overall pain, which included his back condition, as constant with some relief from medications. The examiner noted that the Veteran had a limp on his right lower extremity without use of ambulatory aid or brace. The Veteran’s strength was a 4 out 5 in his bilateral lower extremities, his sensory examination was intact, and his deep tendon reflexes (DTRs) were normal. In March 2009, during another VA examination, the Veteran stated he had pain and burning sensations down his bilateral lower extremity and feet. He reported interference with occupational function and activities of daily living because he had difficulty standing and walking. In May 2018, the Veteran received another VA examination. The Veteran was diagnosed with diabetic peripheral neuropathy. The examiner noted the Veteran had mild intermittent pain in his right lower extremity, mild paresthesias, and mild numbness. The Veteran had normal strength in his right lower extremity and normal light touch sensation. The Veteran did, however, have decreased cold sensation and his DTRs were decreased. There was no muscle atrophy. The Veteran’s peripheral neuropathy of the right lower extremity affected his sciatic nerve and caused mild incomplete paralysis. The examiner lastly noted the Veteran’s overall severity of his neuropathy of the right lower extremity was mild. The Board notes that VA treatment records and private medical records show complaints for burning sensation and pain in the Veteran’s right lower extremity. However, none of the medical records refer to the Veteran’s radiculopathy and/or peripheral neuropathy of the right lower extremity as moderate to severe. The Veteran was consistently noted as having normal strength and normal sensation with occasional numbness or mild pain in his right lower extremity. After review of the evidence, the Board finds a rating in excess of 10 percent is not warranted. The Board finds that the Veteran’s radiculopathy/peripheral neuropathy of the right lower extremity is appropriately represented as “mild” under Diagnostic Code 8520. See 38 C.F.R. § 4.124a, DC 8520. The Veteran’s pain has been reported as intermittent, his pain has been marked as mild, and the pain specifically in his right lower extremity has never been found to be constant. Further, the evidence of record has not shown the Veteran’s radiculopathy/peripheral neuropathy has been severe with marked muscular atrophy or the equivalent of complete paralysis of the right lower extremity at any time during the period on appeal. The Board also acknowledges the Veteran’s May 2018 testimony where he stated he suffers from weakness in his right lower extremity. However, the Board notes the Veteran received his May 2018 VA examination only shortly before his hearing and his muscle strength was found to be normal, as well as his light touch. Further, although he did have decreased deep tendon reflexes, the examiner marked his overall severity as mild. Accordingly, a rating in excess of 10 percent for the Veteran’s radiculopathy of the right lower extremity is not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Low Back Condition The Veteran’s low back condition is currently rated as 20 percent disabling from April 30, 2015, and 10 percent prior to April 30, 2015. In May 2018, the Veteran received a Board hearing. The Veteran reported that his back has gotten progressively worse over the years and currently he feels it’s at its breaking point. The Veteran stated it is now at the point where he can barely bend at the waist and when he leans over he can feel strain and pain in his back. The Veteran stated that his back condition has now gotten more severe and even recalled an episode in August 2017 that required him to go to the emergency room because he suddenly could not stand or walk. Although the Veteran’s last VA examination was only two years ago, the Board notes that the Veteran’s May 2018 hearing testimony recalls a more severe condition since that examination. As such, because the Veteran has reported extreme worsening symptoms since his last examination, the Board finds that a remand is required to obtain a new medical examination to determine the current severity of the Veteran’s low back condition. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA and private treatment records relevant to the Veteran’s low back condition. 2. After all outstanding records have been associated with the claims file, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his low back condition. The record and a copy of this Remand must be made available to the examiner. Following a review of the entire record, to include the Veteran’s lay statements regarding his current symptoms, the examiner should identify any findings related to the Veteran’s low back condition and fully describe the current extent and severity of those symptoms. The examiner should test range of motion and consider pain on both passive and active motion, and in both weight-bearing and non-weight-bearing positions, 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. The examiner should discuss all findings in terms of the General Rating Formula for Disease and Injuries of the Spine, specifically Diagnostic Codes 5237-5243. The pertinent rating criteria must be provided to the examiner, and the findings reported must be sufficiently complete to allow for a rating under all alternate criteria. The examiner should further determine whether any low back disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran for each disability. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding symptoms and the opinion should note that consideration. A clearly stated rationale must be provided for any opinion offered. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel