Citation Nr: 19118232 Decision Date: 03/14/19 Archive Date: 03/13/19 DOCKET NO. 13-28 132 DATE: March 14, 2019 ORDER A 40 percent rating, but no higher, for sciatic radiculopathy of the left lower extremity (LLE), is granted, subject to the laws and regulations governing the payment of monetary awards. REMANDED Entitlement to individual unemployability due to unemployability due to service-connected disabilities (TDIU) prior to March 10, 2015, is remanded. FINDING OF FACT For the entire appeal period, the Veteran’s sciatic radiculopathy of the LLE results in moderately severe incomplete paralysis of the sciatic nerve, without more severe manifestations that more nearly approximate severe incomplete paralysis with marked muscle atrophy or complete paralysis of the sciatic nerve. CONCLUSION OF LAW The criteria for a 40 percent rating, but no higher, for sciatic radiculopathy of the LLE are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1975 to September 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Board remanded the case for additional development and it now returns for further appellate review. Regarding the Veteran’s claim of entitlement to a TDIU, the Board notes that a March 2015 rating decision granted such as of March 10, 2015. However, as the claim for TDIU was raised as part and parcel of the Veteran’s claim for an increased rating for his radiculopathy of the LLE, the Board has jurisdiction over such claim and it is addressed herein. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018). The Board further observes that, in January 2018, July 2018, and September 2018, VA received returned mail from the Veteran’s appointed representative, Mr. Kimball Jones, an accredited agent. Additionally, in November 2018, VA received correspondence from Mr. Michael Kimball, a private attorney, who stated that he had received erroneously received correspondence pertaining to the Veteran and indicated that he did not represent him. In this regard, it appears that, in an effort to determine Mr. Jones’ correct address, VA erroneously used Mr. Kimball’s address. Nonetheless, in December 2018, the Board erroneously sought clarification from the Veteran regarding his representation. Such notice advised him that, if the Board did not hear from him within 30 days of the date of the letter, it would be presumed that he wished to represent himself. Although no response was received, the Board acknowledges that Mr. Jones remains the Veteran’s representative as his representation has not been withdrawn or revoked. Furthermore, it appears that his address has been updated in VA’s General Counsel’s database. 1. Entitlement to a rating in excess of 20 percent prior to March 10, 2015, and in excess of 40 percent thereafter for sciatic radiculopathy of the LLE. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s service-connected sciatic radiculopathy of LLE is rated as 20 percent prior to March 10, 2015, and 40 percent disabling thereafter pursuant to DC 8520. In this regard, the appeal period before the Board begins on April 1, 2009, the date VA received the Veteran’s claim for an increased rating for his sciatic radiculopathy of the LLE, plus the one-year look back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Under DC 8520, a 20 percent rating is assigned where there is moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned where there is moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. Finally, an 80 percent rating is assigned where there is complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. In this regard, 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Further, descriptive words such as “moderate,” “moderately severe,” and “severe” as used in the aforementioned DC are not defined in VA’s 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. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of 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 regard to the evidence of record, the Veteran’s VA treatment records reflect complaints of decreased sensation, numbness, pain, and weakness in the LLE. Additionally, during his January 2010 VA examination, he complained of constant tingling, numbness, pain, and weakness in his legs, and reported that he had no feeling on the left side of his body. However, it was noted that there was no abnormal sensation, anesthesia, or paralysis of the affected parts. Upon physical examination, motor function was abnormal with findings of weakness at 4/5 of the left leg. Sensory function is within normal limits, and reflexes revealed knee and ankle jerks at 2+. The examiner indicated the peripheral nerve involvement was not evident during the examination, but noted that the sciatic nerve was affected. An August 2012 evaluation completed by the Veteran’s VA treatment provider, a physician’s assistant, reflects his reports of chronic pain radiating from his back to his left leg. At such time, his provider characterized the Veteran’s radiculopathy of the LLE as moderately severe rather than mild, moderate, or severe, and noted that such resulted in sensory loss. VA treatment records dated from May 2013 to July 2013 reflect absent patella and Achilles reflexes, left leg giveway, weakness, and pain on walking. In March 2015, the Veteran was afforded additional VA examinations of the back and peripheral nerves. The VA examiner who assessed the Veteran’s back disability noted the presence of radiculopathy of the LLE that resulted in moderate incomplete paralysis of the sciatic nerve. In this regard, physical examination revealed mild constant pain, paresthesias and/or dysesthesias, and numbness in the left leg, decreased reflexes, and an abnormal gait. The examiner further reported left deep tendon reflexes (DTR) of 1+ in the knee and 2+ in the ankle, and found strength testing of left hip flexion, knee extension, ankle plantar flexion, and ankle dorsiflexion was 4/5 with active movement against some resistance. Additionally, left thigh atrophy of 2 centimeters was noted. The VA examiner who assessed the Veteran’s LLE radiculopathy noted his reports of pain, numbness, and weakness from the low back through the buttocks to the calves with numbness of the last 2 toes of the feet. Severe constant and intermittent pain, paresthesias and/or dysesthesias, and numbness of the left lower extremity were reported by the Veteran. Upon physical examination, the Veteran’s muscle strength testing for left hip flexion, knee extension, ankle plantar flexion, and ankle dorsiflexion was 3/5 with active movement against gravity. The examiner further noted the Veteran had an abnormal gait as he limped due to a weak left leg; however, there was no muscle atrophy. Reflexes were absent in the left knee and ankle. Sensation was decreased in the left lower leg/ankle and foot/toes. The examiner found that the Veteran’s radiculopathy of the LLE that resulted in moderate incomplete paralysis of the sciatic nerve. The Veteran was most recently afforded a VA examination in August 2018. At such time, he reported pain from low back through buttock and side/back of thigh, and side of calf to foot. He also indicated that the foot goes numb and the leg is weak. The Veteran further reported moderate constant pain, and severe intermittent pain, paresthesias and/or dysesthesias, and numbness. Upon physical examination, his muscle strength testing for left knee extension, ankle plantar flexion, and ankle dorsiflexion was 3/5 with active movement against gravity. Reflex examination revealed absent DTRs in the left knee and ankle. Sensation was decreased in the left thigh/knee, lower leg/ankle and foot/toes. The examiner further noted the Veteran had an abnormal gait as he limped due to a weak left leg; however, there was no muscle atrophy. The examiner found that his radiculopathy of the LLE resulted in moderate incomplete paralysis of the sciatic nerve. After a review of the record, the Board resolves all doubt in favor of the Veteran and finds that, for the entire appeal period, his sciatic radiculopathy of the LLE results in moderately severe incomplete paralysis of the sciatic nerve. Consequently, a 40 percent rating, for such disability is warranted. In this regard, the evidence shows that such disability is manifested by decreased sensation, numbness, pain, and weakness; weakness in motor function and strength testing to 4/5 with active movement against some resistance or 3/5 with active movement against gravity; and decreased or absent reflexes throughout the appeal period. With regard to the period prior to March 10, 2015, the evidence shows the Veteran’s subjective reports of decreased sensation, numbness, pain, and weakness. Furthermore, upon examination in January 2010, he had reduced motor function to 4/5, and in 2013, absent patella and Achilles reflexes. Additionally, in August 2012, the Veteran’s treatment provided assessed his LLE radiculopathy as moderately severe. Therefore, in light of the combination of the Veteran’s reported sensory disturbances, and objective evidence of decreased motor function and reflexes for the period prior to March 10, 2015, the Board resolves all doubt in his favor and finds that his sciatic radiculopathy of the LLE more nearly approximates moderately severe incomplete paralysis of the affected nerve, thereby warranting a 40 percent rating. However, for the entire appeal period, the Board finds that, as the Veteran’s sciatic radiculopathy of the LLE does not result in more severe manifestations that more nearly approximate severe incomplete paralysis with marked muscle atrophy or complete paralysis of the sciatic nerve, a rating in excess of 40 percent is not warranted. In this regard, the evidence shows that the Veteran maintains some sensation and strength in the LLE and, while the March 2015 VA examiner noted the presence of atrophy, the remainder of the evidence of record, to include subsequent examinations, are negative for such a finding. Moreover, at such time, atrophy of only 2 centimeters was noted, which does not rise to the level to be considered as “marked muscle atrophy.” As such, the Board finds that the Veteran’s sciatic radiculopathy of the LLE does not more nearly approximate sciatic nerve with marked muscular atrophy. Furthermore, at no point during the pendency of the appeal period has the evidence, to include the Veteran’s own statements, indicate that such disability resulted in complete paralysis of the sciatic nerve, described as where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Therefore, a rating in excess of 40 percent for the Veteran’s sciatic radiculopathy of the LLE is not warranted at any point pertinent to the appeal period. In reaching its conclusions in the instant case, the Board acknowledges the Veteran’s belief that the symptoms of his sciatic radiculopathy of the LLE are more severe than as reflected by the current assigned disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule, to include the Veteran’s subjective reports. While the Board recognizes that he is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected disability; however, the Board finds that his symptomatology has been stable the entirety of the appeal. Therefore, assigning staged ratings for such disability is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In adjudicating the Veteran’s claim herein, the Board has resolved all doubt in his favor, which has resulted in a partial increased rating for his sciatic radiculopathy of the LLE. However, to the extent that a higher is denied herein, the Board finds that the preponderance of the evidence is against such aspect of his claim. Consequently, the benefit of the doubt doctrine is not applicable in such regard, and the Veteran’s claim for an increased rating is otherwise denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to a TDIU prior to March 10, 2015. As noted in the Introduction, the Veteran has been assigned a TDIU as of March 10, 2015, the date he met the schedular threshold for such benefit. 38 C.F.R. § 4.16(a). However, as the Board’s award of a 40 percent rating for sciatic radiculopathy of the LLE for the entire appeal period stemming from the Veteran’s April 2009 claim may result in an increase in his overall disability rating for period prior to March 10, 2015, a remand is necessary in order for the AOJ to implement such award and reconsider the Veteran’s TDIU claim. Further, while on remand, the Board finds that clarification as to the Veteran’s employment history for the period prior to March 10, 2015, is necessary. Specifically, in his August 2013 Application for Increased Compensation for Unemployability (VA Form 21-8940), the Veteran reported that he last worked in 2010 as an offshore cook, and reported prior employment with Blue Martin, OSSA Catering, and Fab Con in such capacity, but did not provide start and end dates, or income received. Additionally, in May 2013, Social Security Administration records reflect that he reported that his most recent employment ended in 2009 rather than 2010. Therefore, a remand is necessary for the Veteran to complete and submit a VA Form 21-8940 with complete dates of employment and income received. The AOJ should also contact employers identified by the Veteran and ask them to complete VA Form 21-4192, or other appropriate form, detailing the dates of the Veteran’s employment and the reasons that he stopped working. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he complete and return a VA Form 21-8940, listing his complete employment history, to include part-time and seasonal employment, with his start and end dates and income received, since April 2009. 2. After receiving the Veteran’s VA Form 21-8940, the AOJ should contact his former employers, and ask them to complete and return VA Form 21-4192, or other appropriate form, detailing the dates of the Veteran’s employment and the reasons that he stopped working. 3. After implementing the Board’s award of a 40 percent rating for the Veteran’s sciatic radiculopathy of the LLE for the entire appeal period stemming from his April 2009 claim, and completing the aforementioned development, the AOJ should readjudicate the Veteran’s claim for a TDIU prior to March 10, 2015. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany Alston, Associate Counsel