Citation Nr: 20021915 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 15-17 671 DATE: March 27, 2020 ORDER Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity prior to May 7, 2019, is denied. Entitlement to a 40 percent rating for radiculopathy of the right lower extremity as of May 7, 2019, is granted. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity prior to May 7, 2019, is denied. Entitlement to a 40 percent rating for radiculopathy of the left lower extremity as of May 7, 2019, is granted. REMANDED Entitlement to a rating in excess of 10 percent for chondromalacia of the right knee, status post excision of the posterior horn medial meniscus tear and excision of medialplica with early degenerative changes is remanded. Entitlement to a rating in excess of 10 percent for musculoligamentous strain of the left knee is remanded. Entitlement to a rating in excess of 10 percent for spondylosis of the lumbosacral spine with degenerative spurring on vertebral body margins is remanded. FINDINGS OF FACT 1. Prior to May 7, 2019, the Veteran’s radiculopathy of the right lower extremity manifested in intermittent pain as well as numbness and tingling; there was no marked muscle atrophy or complete paralysis. 2. As of May 7, 2019, the Veteran’s radiculopathy of the right lower extremity manifested in intermittent pain as well as numbness, tingling, sensory disturbances, loss of reflexes and trophic changes; there was no marked muscle atrophy or complete paralysis. 3. Prior to May 7, 2019, the Veteran’s radiculopathy of the left lower extremity manifested in numbness; there was no pain, tingling, marked muscle atrophy or complete paralysis. 4. As of May 7, 2019, the Veteran’s radiculopathy of the left lower extremity manifested in numbness, weakness, sensory disturbances, loss of reflexes and trophic changes; there was no marked muscle atrophy or complete paralysis. CONCLUSIONS OF LAW 1. Prior to May 7, 2019, the criteria for a rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.13, 4.123, 4.124, Diagnostic Code 8520 (2018). 2. As of May 7, 2019, the criteria for a rating of 40 percent for radiculopathy of the right lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.13, 4.123, 4.124, Diagnostic Code 8520 (2018). 3. Prior to May 7, 2019, the criteria for a rating in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.13, 4.123, 4.124, Diagnostic Code 8520 (2018). 4. As of May 7, 2019, the criteria for a rating of 40 percent for radiculopathy of the left lower extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.13, 4.123, 4.124, Diagnostic Code 8520 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from April 21, 1995 to April 23, 1995, from November 2002 to September 2003 and from November 2003 to July 2005. The Board notes that the Veteran’s rating for radiculopathy of the right lower extremity was increased to 20 percent back to the effective date of the grant of service connection and increased to 20 percent for radiculopathy of the left lower extremity effective May 7, 2019. While the Veteran’s initial ratings of 10 percent for each extremity were increased, as the grants are not a 100 percent grant, there has not been a full grant of benefits sought. As such, the issues of increased ratings for the right and left lower extremities remain on appeal. Increased Rating The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also consider entitlement to staged ratings to compensate for times when the disability may have been more severe than at other times during the appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In such case, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. In the instant case, the Veteran was granted service connection for his lumbar DDD in December 2005 and filed his claim for increase on March 9, 2009. Therefore, the period under consideration for that claim begins on March 9, 2008. Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term “incomplete paralysis” with peripheral nerve injuries 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. The Veteran’s radiculopathy of the right and left lower extremities has been evaluated under Diagnostic Code 8520 separately. 38 C.F.R. § 4.124a. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve; where the foot dangles and drops, no active movement possible of muscles below the knee, or flexion of knee is weakened or (very rarely) lost, is rated 80 percent disabling. While the rating schedule does not define terms such as “mild,” “moderate,” or “severe,” it does provide some guidance regarding neurological disabilities. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The rating schedule provides that cranial or peripheral neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating that may be assigned for neuritis not characterized by organic changes referred to above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Discussion The Veteran has been assigned separate ratings for his right and left lower extremities. As to the radiculopathy of the right lower extremity, he has been assigned a 20 percent rating throughout the appeal period. He has been assigned staged ratings for radiculopathy of the left lower extremity as of May 7, 2019. However, the Board finds that the evidence of record supports the assignment of staged ratings for both the right and left lower extremities as of the date of the Veteran’s latest VA examination for peripheral nerve conditions, May 7, 2019. As such, the Board will discuss the Veteran’s conditions prior to and as of May 7, 2019. Additionally, the Board finds that the same rating is warranted for the right and left lower extremity as of May 7, 2019. As such, the Board will discuss that period of the appeal jointly. The Board notes that doing so does not impact the Veteran’s assignment of a separate rating for each condition. Right Lower Extremity: Prior to May 7, 2019 The Veteran is service connected for radiculopathy of the bilateral lower extremities associated with his service-connected back disability as identified in a January 2015 VA back examination. For the right lower extremity, the report indicated no constant pain and indicated moderate intermittent pain, mild paresthesias and/or dysesthesias and mild numbness. The Veteran did not have any other signs or symptoms of radiculopathy. The examiner identified the nerve involved as the sciatic nerve and indicated moderate severity for the right side. As to lay statements, the Veteran submitted a written correspondence in February 2016, in which he stated that his right leg is not responding well; he stated that it sometimes gives out, and he has fallen. He stated that he receives steroid shots from a Dr. B. He stated that he has muscle loss and indicated that his right thigh is two inches smaller than his left thigh. He stated that there is “definite muscle atrophy in the right leg because of radiculopathy.” He stated that Dr. B. thinks it is because he has a pinched nerve in his lower back. Having reviewed the evidence during this period of the appeal, the Board finds that the assignment of a 20 percent rating is warranted. During this period of the appeal, the medical and lay evidence indicated pain as well as numbness and tingling. As the Veteran’s symptoms were wholly sensory, his rating is limited to mild or moderate. Given that he also had intermittent pain, the Board finds that the Veteran’s symptoms warrant the maximum rating for wholly sensory symptoms, moderate, which is commensurate with a 20 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. However, a higher rating is not warranted during this period of the appeal. The record does not support that the Veteran’s symptoms were moderately severe, as they were manifested predominantly by numbness, tingling and pain, which are wholly sensory symptoms. As discussed, the maximum rating for wholly sensory symptoms is that for moderate symptoms. As such, a 40 percent rating for moderately severe symptoms is not warranted. Nor does the record support that the Veteran’s symptoms were severe with marked muscular atrophy. While he asserts that he had muscle atrophy, physical examination during this period of the appeal did not indicate such. The Board acknowledges the Veteran’s assertions that Dr. B. believed that his atrophy was due to a pinched nerve in his back. However, as the Veteran was examined in 2015 and muscle atrophy may not have been assessed, even assuming that the Veteran had muscle atrophy as of the 2016 statement, there is no medical evidence of record indicating “marked muscle atrophy” as required for a 60 percent rating. Lacking competent medical evidence of marked muscle atrophy, a rating of 60 percent for severe symptoms is not warranted. Nor does the record indicate that the Veteran suffered from complete paralysis of the right lower extremity during this period of the appeal. While the Veteran states that he has fallen, the record does not suggest, nor has the Veteran indicated, that his foot dangled or dropped, that there was no active movement below his knee or that his flexion was weakened during this period of the appeal. Lacking competent medical evidence of complete paralysis, an 80 percent rating is not warranted. The Board has also considered whether a higher rating is warranted under other potentially applicable diagnostic codes regarding the Veteran’s condition. To this point, the Board notes that trophic changes, scars, and amputation with the need for prosthesis are relevant when rating neurological conditions. However, the evidence of record does not indicate that the Veteran has any of these conditions. Nor has the Veteran suggested as such. Thus, there is no basis for application of other diagnostic codes or higher ratings relating to peripheral nerve conditions. Given the evidence, the Board finds that a rating of 20 percent, but no higher, is warranted for the Veteran’s radiculopathy of the right lower extremity prior to May 7, 2019. Left Lower Extremity: Prior to May 7, 2019 The Veteran has been assigned a 10 percent rating prior to May 7, 2019, and a 20 percent thereafter for radiculopathy of the left lower extremity. As noted, the Veteran is service connected for radiculopathy of the bilateral lower extremities associated with his service-connected back disability as identified in a January 2015 VA back examination. For the left lower extremity, the report indicated no constant pain, no intermittent pain, no paresthesias and/or dysesthesias and mild numbness. The Veteran did not have any other signs or symptoms of radiculopathy. The examiner identified the nerve involved as the sciatic nerve and indicated mild severity for the left side. The Veteran has not submitted any lay statements regarding his radiculopathy of the left lower extremity. Having reviewed the evidence during this period of the appeal, the Board finds that the assignment of a 10 percent rating for radiculopathy of the left lower extremity is warranted prior to May 7, 2019. During this period of the appeal, the medical and lay evidence indicate numbness, which the Board notes is a wholly sensory symptom. As noted, as the Veteran’s symptoms were wholly sensory, his rating is limited to mild or moderate. While a rating for moderate symptoms may be assigned for wholly sensory symptoms, given the Veteran’s lack of pain or any additional wholly sensory symptoms, the Board finds that his symptoms during this period were no more than mild. As such, a 10 percent rating is assigned prior to May 7, 2019. 38 C.F.R. § 4.124a, Diagnostic Code 8520. However, a higher rating is not warranted during this period of the appeal. The record does not support that the Veteran’s symptoms were moderately severe, as they were manifested predominantly by numbness, a wholly sensory symptom. As discussed, the maximum rating for wholly sensory symptoms is that for moderate symptoms. As such, a 40 percent rating for moderately severe symptoms is not warranted. Nor does the record support that the Veteran’s symptoms were severe with marked muscular atrophy. The medical evidence during this period of the appeal does not indicate any muscle atrophy. Nor has the Veteran indicated as such regarding his left lower extremity. Lacking competent medical evidence of marked muscle atrophy, a rating of 60 percent for severe symptoms is not warranted. Nor does the record indicate that the Veteran suffered from complete paralysis of the left lower extremity during this period of the appeal. The record does not suggest, nor has the Veteran indicated, that his left foot dangled or dropped, that there was no active movement below his left knee or that his flexion was weakened during this period of the appeal. Lacking competent medical evidence of complete paralysis, an 80 percent rating is not warranted. The Board has also considered whether a higher rating is warranted under other potentially applicable diagnostic codes regarding the Veteran’s condition. As noted, trophic changes, scars, and amputation with the need for prosthesis are relevant when rating neurological conditions. However, the probative evidence does not indicate that the Veteran has any of these conditions. Nor has the Veteran suggested as such. Thus, there is no basis for application of other diagnostic codes or assignment of a higher rating relating to peripheral nerve conditions. Given the evidence, the Board finds that a rating of 10 percent, but no higher, is warranted for the Veteran’s radiculopathy of the left lower extremity prior to May 7, 2019. Right and Left Lower Extremities as of May 7, 2019: In its July 2018 remand, the Board instructed that the Veteran undergo a peripheral nerves examination for his radiculopathy of the lower extremities. Accordingly, the Veteran was afforded a peripheral nerves examination in May 2019. As to peripheral nerve symptoms for the right lower extremity, there was no constant pain, and there was moderate intermittent pain, moderate paresthesias and/or dysesthesias, and severe numbness. As to peripheral nerve conditions for the left lower extremity, the report indicates no constant pain or intermittent pain, moderate paresthesias and/or dysesthesias, and severe numbness. Muscle strength testing was normal for the right and left lower extremity, and there was no muscle atrophy. Reflexes were absent for the right and left knees and ankles. Sensation testing for light touch were normal for the right and left upper/anterior thigh and thigh/knee and were absent for the right and left lower legs/ankles and foot/toes. The Veteran had trophic changes, which the examiner described as smooth skin on the ankles and feet bilaterally. The Veteran’s gait was indicated as abnormal, which the examiner described as “careful and purpose gait” due to radiculopathy and pain. The examiner indicated incomplete paralysis of the sciatic nerve for the right and left lower extremity, each of mild severity. The examiner also noted regular use of a brace. There were no associated scars indicated. Having reviewed the evidence of record during this period of the appeal, the Board finds that a separate 40 percent rating is warranted for the right and left lower extremities for moderately severe symptoms as of May 7, 2019. During this period of the appeal, the Veteran continued to experience pain, numbness and tingling in the right lower extremity, and he experienced numbness and tingling in the left lower extremity. He also experienced sensory disturbances, with his senses being absent in parts of his right and left lower extremities, trophic changes and loss of reflexes for each lower extremity. As such, the Veteran’s symptoms during this period of the appeal were not wholly sensory. As the Veteran’s symptoms were not wholly sensory during this period of the appeal, a rating in excess of that commensurate with moderate symptoms, wholly sensory, is warranted. Accordingly, the Board finds that the assignment of a 40 percent rating for moderately severe symptoms is warranted as of May 7, 2019 for the right and left lower extremities. However, a 60 percent rating is not warranted for severe symptoms. A 60 percent rating requires severe symptoms and marked muscle atrophy. While the Veteran’s symptoms also disturbed his gait and included trophic changes, there is no evidence of marked muscle atrophy. While the Veteran asserted in 2016 that he had muscle atrophy of the right thigh, physical examination of the Veteran during the May 2019 exam did not indicate as such. As the VA exam was based on physical examination of the Veteran, the Board finds the assessment probative. Thus, lacking evidence of marked muscle atrophy, a 60 percent rating for severe symptoms is not warranted for either lower extremity. Nor is a 60 percent rating for severe symptoms warranted when considering the provisions of 38 C.F.R. § 4.123. The symptoms listed in 38 C.F.R. § 4.123 are listed conjunctively. Therefore, all the symptoms (loss of reflexes, muscle atrophy, sensory disturbances, and constant pain) must be present to warrant a higher rating than moderately severe for sciatic nerve involvement. However, physical examination of this Veteran indicated no constant pain or muscle atrophy for the right or left lower extremity. Moreover, even assuming he had muscle atrophy, as there was no indication of constant pain a rating for severe complete paralysis is not warranted. 38 C.F.R. § 4.123. Lacking evidence of each of the listed organic changes, the maximum rating allowed for his sciatic nerve impairment is that for moderately severe symptoms relating to the sciatic nerve. Therefore, the assigned ratings for moderately severe symptoms, 40 percent for the sciatic nerve, are appropriate. Nor does the record indicate that the Veteran suffered from complete paralysis of the right or left lower extremity during this period of the appeal. While there were absent light touch senses for the bilateral lower leg and foot/toes, the record does not suggest, nor has the Veteran indicated, that his foot dangles or drops, that there is no active movement below his knee or that his flexion is weakened. To the contrary, the May 2019 exam indicated normal muscle strength and flexion for the right and left knees. Lacking competent medical evidence of complete paralysis, an 80 percent rating is not warranted. The Board has also considered whether a higher rating is warranted under other potentially applicable diagnostic codes regarding the Veteran’s condition. As noted, trophic changes, scars, and amputation with the need for prosthesis are relevant when rating neurological conditions. However, the Board has considered the Veteran’s trophic changes in the assignment of a 40 percent rating, indicating that his symptoms were moderately severe as opposed to wholly sensory. As to scars, the probative evidence indicates that the Veteran does not have scars associated with his radiculopathy. Additionally, while he uses a brace, there is no indication of an amputation of the right or left lower extremity or need for prosthesis. Nor has the Veteran suggested as such. Thus, there is no basis for application of other diagnostic codes or assignment of a higher rating relating to peripheral nerve conditions. Given the evidence, the Board finds that separate ratings of 40 percent, but no higher, are warranted for the Veteran’s radiculopathy of the right and left lower extremity as of May 7, 2019. REASONS FOR REMAND The claims for entitlement to increased ratings for right and left knee disabilities and a lumbar spine disability are remanded. Remand is necessary to obtain a VA musculoskeletal examination in compliance with current guiding provisions. The May 2019 VA examiner noted flare-ups for the Veteran’s right and left knee and spine but indicated that he was unable to opine as to additional functional loss during flare-ups without resorting to speculation. While the examiner provided an explanation, the exam nor opinion are adequate in light of recent changes in the law. The Court recently addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). In that case, the Court held that a VA examiner must attempt to elicit information from the record and from the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. The Court also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. While the May 2019 VA examiner indicated that medical records did not identify “significant” previous range of motion testing, the examiner did not attempt to illicit information from the Veteran or record regarding additional loss for his knees or back specifically during flare-ups. As such, in the VA examination conducted per this remand, if the examiner determines that he or she is unable to estimate motion loss in terms of degrees during periods of flare-ups regarding the Veteran’s knee or back disabilities, the examiner must review the record and attempt to elicit functional impairment information from the Veteran before stating that a degree estimate of range of motion loss due to functional impairment cannot be given. The examiner must then still provide an explanation of any inability to estimate motion loss in terms of degrees The matters are REMANDED for the following action: 1. Have the Veteran identify any additional treatment records regarding his service-connected bilateral knee and lumbar spine disabilities. Obtain any outstanding VA records. For any identified private treatment records, provide the Veteran authorization to release these records, and, if received, make the appropriate (2) attempts to obtain these records. After obtaining any additional records, schedule the Veteran for a new VA examination with an appropriate examiner to ascertain the current severity and manifestations of his service-connected right and left knee disabilities and lumbar spine disabilities. The claims file must be made available to the examiner, and the examiner should state in the opinion that review of the electronic record was accomplished. The examiner must consider the Veteran’s lay statements and provide all information required for rating purposes. i) Specifically, the examiner is advised that it is necessary to consider, along with the schedular criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. ii) Additionally, the examiner must test the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 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. iii) Importantly, in regard to additional functional loss due to flare-ups, the examiner must clearly state that he or she reviewed the record and attempted to elicit functional impairment information from the Veteran before stating that a degree estimate of range of motion loss due to functional impairment cannot be given. The examiner must also provide an explanation of any inability to estimate motion loss in terms of degrees. 2. After completing the above actions, readjudicate the claims on appeal. If the benefits sought remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case. Thereafter, the case should be returned to the Board for further appellate action if appropriate. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.