Citation Nr: 21000035 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 13-10 418 DATE: January 4, 2021 ORDER Entitlement to a disability rating of 20 percent for left lower extremity radiculopathy is granted from May 18, 2009. REMANDED Entitlement to a disability rating in excess of 20 percent for degenerative disc disease (DDD) of the thoracolumbar spine is remanded. Entitlement to a total disability rating based upon unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT From May 18, 2009, the Veteran’s left lower extremity radiculopathy manifested as moderate incomplete paralysis of the sciatic nerve. CONCLUSION OF LAW From May 18. 2009, the criteria for entitlement to a disability rating of 20 percent for left lower extremity radiculopathy have ¬been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from March 2001 to September 2003. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York City, New York. In May 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. A claim for a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is part and parcel of any claim for an increased disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran has indicated pursuit of entitlement to a TDIU, the Board has added the issue herein. In August 2019, the Board granted in part and denied in part the Veteran’s claims. In May 2020, the Veteran appealed the portions of the Board August 2019 decision to United States Court of Appeals for Veteran’s Claims (Court), resulting in a Joint Motion for Partial Remand (JMPR). A May 2020 Court order vacated parts of the Board decision and remanded those parts for compliance with the parties’ directives in the JMPR. The JMPR The parties to the JMPR found that the Board did not support its denial of a disability rating on excess of 10 percent for left lower extremity radiculopathy prior to November 20, 2018. More specifically, the parties found that the Board did not adequately analyze specific language in 38 C.F.R. § 4.124a, Diagnostic Code 8520 as relevant to the Veteran’s degree of disability prior to November 2018. The parties also found that the Veteran had not been afforded an adequate examination of his DDD of the thoracolumbar spine to date, which assessed all the features of this disability. And, lastly as noted above, the Board did not consider the Veteran’s raising of entitlement to a TDIU in his increased rating claims. The parties to the JMPR did not disturb the other issues in the Board’s August 2019 decision (grant of service connection for erectile dysfunction; denial of a disability rating in excess of 20 percent for left lower extremity radiculopathy from November 20, 2018). Competent Evidence Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). The Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Increased Disability Ratings The Veteran contends that the 10 percent disability rating assigned to his service-connected left lower extremity radiculopathy prior to November 29, 2018 did not contemplate the severity of his symptomatology at that time. 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 diagnostic 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected left lower extremity radiculopathy is evaluated according to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. 38 C.F.R. § 4.124a, Diagnostic Codes 8520-8730. Under Diagnostic Code 8520, ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. Id. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The term “incomplete paralysis,” with respect to peripheral nerve injuries, indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a. The words “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. C.F.R. § 4.6 According to MERRIAM WEBSTER, “Mild” means “gentle in nature or behavior”. See www.merriam-webster.com/dictionary/mild (last accessed on December 16, 2020). “Moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate (last accessed on December 16, 2020). “Severe” means “very painful or harmful”. See www.merriam-webster.com/dictionary/severe (last accessed on December 16, 2020). “Incomplete” means “lacking a usually necessary part, element of step”. See www.merriam-webster.com/dictionary/incomplete (last accessed on December 16, 2020). In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Evidence and Analysis In a May 2009 VA orthopedic consultation report, a clinician noted that the Veteran endorsed radiating left buttock pain. The Veteran subjectively conveyed level 10 pain in a 1:10 scale. Early in June 2009, a VA clinician noted that the Veteran experienced left foot drop. Private orthopedic and neurological treatment records disclose that the Veteran underwent a left L4-L5 hemilaminotomy, medial facetectomy, and microdiscectomy in June 2009. The Veteran’s providers described the procedure and indicated post-surgical complaints of persistent leg pain. This same month, one of the Veteran’s private providers submitted a letter in which he indicated that the Veteran was under his neurological care. The record of evidence discloses that the Veteran underwent a course of physical therapy (PT) in August 2009. Notations in these PT records reveal that the Veteran experienced ambulation difficulties including the need for a support device, difficulty getting in and out of an automobile, and extended walking. In August 2009, the Veteran underwent a VA muscle examination. The Veteran reported numbness and weakness in the left leg and left foot dragging since the surgery with difficulty climbing stairs, walking more than one block, and standing more than five minutes. In November 2009, the private neurosurgeon, who performed the procedure in June 2009, submitted two letters. In the first, he conveyed that the Veteran experienced left leg pain and weakness as a direct result of a herniated lumbar disc. In the second, he reported that the Veteran had sought care at an emergency room (ER) on 6 occasions, with complaints of intermittent pain going down the legs. A review of the many hundreds of VA progress notes associated with the record through the period under consideration showed that the Veteran complained of on-going left radicular pain on a regular basis. Further, he availed himself of treatment and consultation at multiple VA facilities. VA clinicians provided pain management educational programming; pain clinic services; acupuncture advisement and care; and pharmaceutical management. VA mental health and social case providers also provided services to ameliorate the Veteran’s psychiatric and social issues, including homelessness. Upon VA examination in November 2009, a VA physician disclosed that she had reviewed the claims file and considered the Veteran’s accounts before providing clinical evaluation. She noted the Veteran’s endorsements of left leg numbness, pain and reduced sensation. The Veteran reported previous work as a truck driver but currently worked at an auto parts store. Upon objective examination, she found that the Veteran was well-developed and well-nourished, appearing in no acute distress. However, she opined that the Veteran was in “some degree of pain” and walked with a gait which was significantly antalgic and he dragged the left leg in an everted position at the hip. The Veteran could rise from a chair without use of the arms. Motion examination provided grossly normal results, with the exception of the left lower extremity. Upon motor testing, there was weakness if the left hip flexion and extension as well as abduction at a level of 4/5. Hip abduction was normal; however, there was weakness at left ankle dorsiflexion, and inversion. Also, eversion at a level of 4/5 extension was weak, at the level of 4/5. There was equivocal weakness of the left great toe at the level of 4 plus onto 5/5. Deep tendon reflexes were grossly normal, bilaterally and symmetrically. She opined that the Veteran’s sensory perceptions were difficult to evaluate with the exception of the left leg, which was grossly normal to cold, pin, and vibration at all vectors. Left lower extremity was somewhat variable from the hip to the toes. Proprioception was normal to toe movement in the right side, but somewhat reduced in the toes of the left leg. In summation, this physician indicated that the Veteran had symptoms that radiate in a distribution of L4 or L5 nerve root. The Veteran underwent another spinal surgical procedure in March 2011 in part because of left leg radicular pain. In August 2011, a clinician noted the Veteran’s report of increased pain because of manual labor at work. In April 2012, the Veteran reported a pain level of 4:10 with the help of pain medication. In June 2012, the Veteran reported that he was no longer working but planned to attend school for vocational training. He was limping but did not use a support device. In July 2012, the Veteran was afforded a VA peripheral nerve conditions examination. A VA clinician reviewed the claims file; considered the Veteran’s account of his medical history; and conducted an appropriate evaluation. The clinician noted that the Veteran’s left lower extremity radiculopathy resulted in moderate intermittent pain, paresthesias/dysesthesias, and numbness. The Veteran occasionally used a cane. Muscle strength testing was normal, with the exceptions of left knee extension; left ankle flexion; and left ankle dorsiflexion. Muscle strength at these latter three vectors was uniformly 4/5 (active movement against some resistance). As noted, there was no muscle atrophy. Measured reflex vectors were all normal. Upon sensory examination, only L-5 provided decreased findings. Gait was noted as antalgic. Findings made as to nerves affected were all normal, with the exceptions of the bilateral tibial nerves where mild incomplete paralysis was indicated. In his April 2013 Substantive Appeal (VA Form 9), the Veteran reported that his symptoms had worsened. At this time, he also wrote that he needed time to hire an attorney. In a May 2015 VA outpatient treatment encounter, the clinician noted that the Veteran denied any radiating pain, and that he worked in a “crushing” plant at a desk job with occasional operation of machinery. His work schedule prohibited participation in VA physical therapy. At the May 2017 Board hearing, the Veteran emphasized that he had been prescribed multiple narcotic medications. He reported that he was no longer able to drive commercial vehicles because of his back, leg, and the medications. He was assigned a position in a control tower where he could sit and stand as needed. Moreover, he reported that his left lower extremity radiculopathy had worsened 100 percent although his spouse testified that he no longer dragged his leg.. See May 8, 2017 Hearing Transcript, p. 11. In January 2018, the Veteran reported to a VA clinician that he intended to travel to Puerto Rico for a heavy equipment contractor job. In November 2020, the Veteran’s representative submitted a brief. In pertinent part, the representative re-articulated the issues which the parties raised in the May 2020 JMPR. In the JMPR, the parties wrote that in light of the evidence of record, as recited above, the Board did not adequately define what the Board understood key regulatory terms to mean (citing Johnson v. Wilkie, 30 Vet. App, 245, 354 (2018)). This lack of adequate definition according to the parties “did not fully inform the Veteran as to the bases for its decision let alone allow the Court to engage in any fully meaningful judicial review of the Board’s actions.” See May 18, 2020 CAVC Decision, pp. 7-8. Adding the MERRIAM WEBSTER definition, as delineated above, a 10 percent disability rating under 38 C.F.R. § 4.124a, Diagnostic Code 8520 is assigned to left lower extremity radiculopathy, when its manifestations are gentle in nature or behavior. A 20 percent disability rating is assigned when its manifestations tend toward the mean or average amount or dimension. As noted above, ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Thus, semantically “mean of average herein” would fall between “gentle in nature or behavior” and “very painful or harmful”. See www.merriam-webster.com/dictionary/severe (last accessed on December 16, 2020). And the indicative paralysis of this mean between “gentle in nature or behavior” and “very painful or harmful” would necessarily be incomplete (“lacking a usually necessary part, element of step”. See www.merriam-webster.com/dictionary/incomplete (last accessed on December 16, 2020). Therefore, to receive a disability rating in excess of 10 percent for left lower extremity radiculopathy, prior to November 20, 2018, there would need to be a showing that left lower extremity radiculopathy manifested in the mean between “gentle in nature or behavior” and “very painful or harmful” incomplete paralysis. Extrapolating from the evidence of record, the Board first assesses the medical evidence of record. An August 2009 PT records reveals that the Veteran experienced ambulation difficulties. He needed a cane or crutch after his surgery and reported difficulty walking getting in and out of an automobile. The November 2009 VA physician opined that upon objective examination, the Veteran opined that the Veteran left leg which was grossly normal to cold, pin, and vibration at all vectors. Left lower extremity was somewhat variable from the hip to the toes. Proprioception was somewhat reduced in the toes of the left leg. In summation, this physician indicated that the Veteran had symptoms that radiate in a distribution of L4 or L5 nerve root. In November 2009, the private neurosurgeon, who performed the procedure in June 2009, submitted two letters. In the first, he conveyed that the Veteran experienced left leg pain and weakness as a direct result of a herniated lumbar disc. In the second, he reported that the Veteran had sought care at an ER on 6 occasions, with complaints of intermittent pain going down the legs. The July 2012 clinician noted that the Veteran’s left lower extremity radiculopathy resulted in moderate intermittent pain, paresthesias/dysesthesias, and numbness. Muscle strength testing was normal, with the exceptions of left knee extension; left ankle flexion; and left ankle dorsiflexion. Muscle strength at these latter three vectors was uniformly 4/5 (active movement against some resistance). Measured reflex vectors were all normal. Upon sensory examination, only L-5 provided decreased findings. Gait was noted as antalgic. Findings made as to nerves affected were all normal, with the exceptions of the bilateral tibial nerves where mild incomplete paralysis was indicated As to the Veteran’s subjective endorsements: The Veteran endorsed radiating left buttock pain at level 10 pain in a 1:10 scale in May 2009. In his April 2013 Substantive Appeal (VA Form 9), the Veteran reported that his symptoms had worsened. At the May 2017 Board hearing, the Veteran advanced that his left lower extremity radiculopathy had worsened 100 percent. Thus, the objective medical evidence discloses that, at worst, prior to November 20, 2018, the Veteran’s left lower extremity radiculopathy, manifested as ambulation difficulties; proprioception somewhat reduced in the toes of the left leg; symptoms that radiate in a distribution of L4 or L5 nerve root; left leg pain and weakness; moderate intermittent pain, paresthesias/dysesthesias, and numbness; and muscle strength testing of 4/5 (active movement against some resistance) at left knee extension; left ankle flexion; and left ankle dorsiflexion. Whereas, the lay evidence discloses that, at worst, prior to November 20, 2018, the Veteran’s left lower extremity radiculopathy was productive subjective endorsement of radiating left buttock pain at level 10; endorsement of worsening systems; and an endorsement that left lower extremity radiculopathy had worsened 100 percent. Here, the issue is whether the objective medical evidence and subjective lay evidence reveals that left lower extremity, prior to November 20, 2018 manifested in the mean between “gentle in nature or behavior” and “very painful or harmful” incomplete paralysis. The Board acknowledges the Veteran’s long term use of strong pain medication. He is service-connected for foot, ankle, and lumbar spine disabilities that also cause pain and contribute to mobility limitations. Although he used a cane occasionally and has limitations in standing and walking endurance, he is able to drive a personal vehicle and engage in employment outside the home. He does experience an antalgic gait and had left foot drop, later corrected apparently by the second surgery. When addressed as a totality, the Board finds that, granting the Veteran the benefit of doubt, the weight of competent and credible medical and lay evidence discloses that the Veteran’s left lower extremity radiculopathy did manifest in the mean between “gentle in nature or behavior” and “very painful or harmful” incomplete paralysis—as moderate incomplete paralysis of the left sciatic nerve from May 18, 2009 (when the Veteran first endorsed radiating left buttock pain at level 10 pain in a 1:10 scale). Placing probative weight on the functional limitations that limit extended standing and walking but do permit mobility with a cane to a place of employment, the Board finds that a higher rating for moderately severe incomplete paralysis is not warranted. As noted above, the Veteran is competent to report discernable symptoms. See Jandreau, supra. The Board finds that this lay evidence is also credible, plausible and, in largest part, internally consistent. See Caluza, supra. However, the totality of evidence, as discussed above, fails to disclose that at any time prior to November 20, 2018 did the Veteran’s left lower extremity manifest as severe (“very painful or harmful”) incomplete paralysis. As such a disability in excess of 20 percent was not warranted. REASONS FOR REMAND Although the Board regrets an additional delay, a remand is necessary to ensure that due process is followed and that there is a full record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5102; 38 C.F.R. § 3.159. DDD of the Lumbar Spine TDIU As noted above, the parties to the May 2020 JMPR directed a new VA examination to assess the severity of the Veteran’s DDD. With great specificity, the parties pointed out deficiencies in prior examinations and addenda. See May 18, 2020 CAVC Decision, pp. 4-6. The Board further observes that the issue of entitlement to a TDIU is inextricably intertwined with the issue on appeal. See Smith (Daniel) v. Gober, 236 F. 3d 1370, 1373 (Fed, Cir, 2001) (where the facts underlying separate claims are “intimately connected,” the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). Hence, a thorough consideration of the TDIU claim must be deferred pending the directed development and subsequent re-adjudication of the increased rating claim for DDD. The matters are REMANDED for the following actions: 1. Contact the Veteran and his representative to ascertain whether there are any private treatment records outstanding for the Veteran’s DDD. If so identified, prepare releases, obtain the records, and associate them with the Veteran’s claims file. 2. Obtain outstanding relevant VA treatment records and associate them with the claim file. 3. Schedule the Veteran for a VA thoracolumbar spine conditions examination. A telehealth examination may be used if found appropriate by the examiner. The claims file should be made available to and reviewed by the clinician and all necessary tests should be performed. All consultation/examination findings should be reported in detail. The clinician must address the following: a. Describe the current nature and severity of the Veteran’s DDD, including any and all diagnoses pertaining to the thoracolumbar spine and associated neurological deficits. b. As appropriate for the thoracolumbar spine, assess both active and passive range of motion, as well as range of motion on weight-bearing and non-weight bearing. If possible, estimate range of motion, to include after repetitive use and during flare ups in terms of degrees based upon observations in the examination and the Veteran’s lay reports of symptoms. c. If it is not possible to provide a specific measurement, or an opinion regarding repetitive use, flare-ups, symptoms, or functional impairment without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). d. Discuss the functional limitation, if any, of the Veteran’s DDD with consideration of the Veteran’s lay statements regarding his experienced limitations due to symptomatology. The examination report should specifically state that a review of the record was conducted. The clinician should provide a complete rationale for all opinions provided. If an opinion cannot be rendered without to resorting to mere speculation, the clinician should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Upon completion of the above-delineated tasks readjudicate the Veteran’s claim and for a TDIU. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.