Citation Nr: 20026049 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 10-11 815 DATE: April 15, 2020 ORDER An initial rating in excess of 10 percent for radiculopathy of the right lower extremity for the period prior to April 30, 2015, is denied. A rating in excess of 20 percent for radiculopathy of the right lower extremity for the period from April 30, 2015, is denied. REMANDED Entitlement to an increased rating for degenerative disc disease of the lumbosacral spine, rated initially as 10 percent disabling and as 20 percent disabling from February 16, 2010, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to February 16, 2010, is remanded. FINDINGS OF FACT 1. For the period of appeal prior to April 30, 2015, the right lower extremity radiculopathy manifested by mild incomplete paralysis. 2. For the period of appeal from April 30, 2015, the right lower extremity radiculopathy is manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for radiculopathy of the right lower extremity for the period prior to April 30, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8520. 2. The criteria for a rating in excess of 20 percent for radiculopathy of the right lower extremity for the period from April 30, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from November 1960 to November 1964. The Board remanded the case in January 2015 for further development. With regard to the right lower extremity claim, the AOJ was instructed to schedule the Veteran for an examination to determine the severity of the radiculopathy. The Veteran subsequently had an examination in April 2019 and the report is associated with the claims file. The Board therefore finds there has been substantial compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). 1. – 2. Increased ratings for the right lower extremity radiculopathy. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. The Veteran’s right lower extremity radiculopathy was assigned an initial 10 percent rating, effective February 16, 2010, under Diagnostic Code 8720, for neuralgia of the sciatic nerve. In a September 2019 rating decision, the rating was increased to 20 percent, effective April 30, 2015, under Diagnostic Code 8520, for paralysis of the sciatic nerve. Under Diagnostic Code 8520, mild incomplete paralysis warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrant a 60 percent disability rating. See 38 C.F.R. § 4.121a, Diagnostic Code 8520. Under this diagnostic code, a rating akin to severe incomplete paralysis is the maximum rating available. See 38 C.F.R. § 4.123. The Board notes that words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence. See 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. See 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In applying the schedular criteria for rating peripheral nerve disabilities, 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. See 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The Board finds that ratings in excess of 10 percent prior to April 30, 2015, and in excess of 20 percent thereafter for the right lower extremity are not warranted. In an April 2010 VA examination, the Veteran reported having pain with electricity that radiated from his lower back to his right leg. On examination, his posture and gait were normal. The right lower extremity showed impaired sensory responses to vibration and light touch. In a May 2010 medical opinion addendum, the examiner who conducted the April 2010 VA examination indicated that the Veteran had right radiculopathy. He did not specify the severity of the radiculopathy. In a July 2010 VA examination, the Veteran was noted to have lower back pain without radiation; however, the right lower extremity was found to have decreased vibration sensation affecting the peroneal nerve. In an August 2010 VA examination, the Veteran reported having right leg tingling and numbness. Results of a sensory examination were normal, and the Veteran reported having normal function of his feet; however, the examiner indicated that nerve dysfunction, paralysis, neuritis, and/or neuralgia was present. In a February 2012 VA examination, results of sensory testing and a straight leg test were negative. The Veteran was not found to have any constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness of the right lower extremity. The examiner indicated that the right lower extremity did not have any radiculopathy. In an April 30, 2015, VA examination, the Veteran described electricity shooting up and down his leg during back flare-ups. On examination, deep tendon reflexes were absent in the knee and ankle, results of a sensory examination were normal, and results of a straight leg raising test were normal. The Veteran had moderate constant pain and Valsalva maneuvers increased pain. The examiner concluded that the sciatic nerve was involved and did not indicate the severity of the radiculopathy. Most recently, in an April 2019 VA examination, deep reflexes of the right knee and ankle were hypoactive, results of a sensory examination were normal, and results of a straight leg raising test indicated radiculopathy was present. The Veteran had mild intermittent pain, but no constant pain, paresthesias and/or dysesthesias, or numbness. The examiner concluded that the sciatic nerve was involved, and the radiculopathy was of mild severity. The Board first finds that a rating in excess of 10 percent prior to April 30, 2015, for the right lower extremity is not warranted. For a higher 20 percent rating, the evidence must show moderate incomplete paralysis. Here, the evidence shows that for this period of the appeal, the radiculopathy was no worse than mild. Specifically, four VA examination reports indicate that the Veteran was not even consistently noted to have radiculopathy. The April 2010 VA examiner noted that the Veteran had right radiculopathy, but did not specify the severity level; the July 2010 VA examiner noted the Veteran did not have radiation of back pain, but was found to have decreased vibration sensation; the August 2010 VA examiner indicated that results of a sensory examination were normal, but that nerve dysfunction, paralysis, neuritis, and/or neuralgia was present; and the February 2012 VA examiner concluded that the right lower extremity did not have any radiculopathy. As such, the preponderance of the evidence indicates that the Veteran’s radiculopathy was of severity no worse than mild. See 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. The Board next finds that a rating in excess of 20 percent from April 30, 2015, for right lower extremity radiculopathy is not warranted. For a higher 40 percent rating, the evidence must show moderately severe incomplete paralysis. Here, the evidence shows that for this period of appeal, the radiculopathy is no worse than moderate. Specifically, the April 2015 VA examiner concluded that the sciatic nerve was involved but did not specify the severity level; and the April 2019 examiner concluded that the sciatic nerve was involved, and the radiculopathy was of mild severity. As such, the preponderance of the evidence indicates that the Veteran’s radiculopathy was of severity nor worse than moderate. See 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. Consideration has also been given to the potential application of the other diagnostic codes for disabilities of the peripheral nerves. See 38 C.F.R. § 4.124a, Diagnostic Codes 8510-8540. However, the Board finds no basis upon which to assign higher evaluations at any point during the period of appeal. Diagnostic Codes 8510 through 8540 refer to paralysis of various nerves. The Veteran has not been shown to have any paralysis of any other nerves, including his bilateral external popliteal, musculocutaneous, anterior tibial, internal popliteal, posterior tibial, internal saphenous, obturator, external cutaneous, and ilio-inguinal nerves. The Board acknowledges the July 2010 VA examiner’s finding that the radiculopathy involved the peroneal nerve; however, the examiner did not indicate the severity of the radiculopathy, and none of the five other VA examination reports indicated involvement of the peroneal nerve. Other diagnostic codes are therefore not applicable. REASONS FOR REMAND 1. Entitlement to an increased rating for degenerative disc disease of the lumbosacral spine is remanded. The Board remanded this issue in January 2015 to schedule the Veteran for a VA examination of the service-connected back disability. The Veteran was provided such an examination in April 2019. The Board finds, however, that the April 2019 VA examination report and subsequent August 2019 addendum opinion are not sufficient bases on which to adjudicate the claim. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that 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 38 C.F.R. § 4.59. That final sentence of 38 C.F.R. § 4.59 directs that the joints involved 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. In the February 2019 VA examination, the examiner performed initial range of motion measurements and indicated there was evidence of pain with weight bearing, but did not indicate whether the pain caused any additional loss of range of motion. In August 2019, a VA physician indicated that there was evidence of pain on passive range of motion testing and there was pain when the joint was used in nonweight bearing, but did not indicate whether the pain caused any additional loss of range of motion. Moreover, prior to the February 2019 VA examination, and as relevant to the appeal, the Veteran was afforded VA examinations of the spine in April 2010, July 2010, August 2010, February 2012, and April 2015. These examinations were conducted prior to Correia, and thus did not include necessary findings. Although the Board sincerely regrets the delay, it is necessary to ensure that the VA examination complies with the requirements of the recent holding in Correia. The examiner should also determine whether it is possible to provide a retrospective medical opinion for the other VA examination conducted during the appeal period. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). Therefore, on remand, the Veteran should be afforded another VA examination to ascertain the severity and manifestations of his back disability. 2. Entitlement to a TDIU prior to February 16, 2010, is remanded. Any decision on the increased rating claim being remanded herein may affect the claim for a TDIU. Consideration of entitlement to a TDIU for the period prior to February 16, 2010, must therefore be deferred until the intertwined issue is resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to ascertain the severity and manifestations of his service-connected degenerative disc disease of the lumbosacral spine. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is asked to review all relevant records and conduct a clinical evaluation. Based on this review, the examiner is asked to provide an assessment of the current nature of the Veteran’s low back. Ranges of motion (ROM) should be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In addition, the VA examiner should comment on whether ROM measurements for active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated for the relevant period prior to April 2019. If the examiner is unable to provide a retrospective opinion as to these specific ROM findings, he or she should clearly explain so in the report. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Nelson 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.