Citation Nr: 21001310 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-24 004 DATE: January 7, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for the Veteran’s service-connected left lower extremity radiculopathy for the period prior to February 1, 2017, is denied Entitlement to a disability rating in excess of 20 percent for the Veteran’s service-connected left lower extremity radiculopathy for the period from February 1, 2017, to September 22, 2020, is denied. Entitlement to a 40 percent disability rating for the Veteran's service connected left lower extremity radiculopathy, effective September 23, 2020 is granted. Entitlement to a disability rating in excess of 10 percent for the Veteran’s service connected right lower extremity radiculopathy for the period prior to September 23, 2020, is denied. Entitlement to a disability rating in excess of 20 percent for the Veteran’s service connected right lower extremity radiculopathy from September 23, 2020, to present is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s lower right extremity radiculopathy most closely approximated mild incomplete paralysis for the period prior to February 1, 2017. 2. The Veteran’s lower right extremity radiculopathy most closely approximated moderate incomplete paralysis for the period from February 1, 2017 to September 22, 2020. 3. The Veteran’s lower right extremity radiculopathy most closely approximated moderately severe incomplete paralysis starting September 23, 2020. 4. The Veteran’s lower right extremity radiculopathy most closely approximated mild incomplete paralysis for the period prior to September 23, 2020, 5. The Veteran’s lower right extremity radiculopathy most closely approximated moderate incomplete paralysis from September 23, 2020. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability rating in excess of 10 percent for the Veteran’s service connected left lower extremity radiculopathy, for the period prior to February 1, 2017, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. 2. The criteria for establishing entitlement to a disability rating in excess of 20 percent for the Veteran’s service-connected left lower extremity radiculopathy for the period from February 1, 2017, to September 22, 2020, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for establishing entitlement to a 40 percent disability rating for the Veteran's service connected left lower extremity radiculopathy, effective September 23, 2020, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for establishing entitlement to a disability rating in excess of 10 percent for the Veteran’s service connected right lower extremity radiculopathy for the period prior to September 23, 2020, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 5. The criteria for establishing entitlement to a disability rating in excess of 20 percent for the Veteran’s service connected right lower extremity radiculopathy for the period from September 23, 2020, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1980 to July 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in August 2019, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with an examination to determine the current severity of his service-connected lower extremity radiculopathy. Additionally, the RO was to provide the Veteran with a VA Form 21-8940 and give him an opportunity to update his employment history. The Veteran was provided a relevant examination, and the RO provided the Veteran with a Form 21-8940. As such, the Board finds that the AOJ substantially complied with the directives in the August 2019 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating—Legal Criteria Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Bilateral Lower Extremity Radiculopathy—Legal Criteria Lower extremity radiculopathy of the sciatic nerve is evaluated under the general rating formula for diseases of peripheral nerves. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. An evaluation of 10 percent is assigned for incomplete paralysis of the sciatic nerve which is mild. A higher evaluation of 20 percent is not warranted unless there is incomplete paralysis which is moderate. Moderately severe incomplete paralysis merits a 40 percent rating. A rating of 60 percent requires severe incomplete paralysis with marked muscle atrophy. The maximum rating of 80 percent is reserved for complete paralysis shown by manifestations such as: the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term “incomplete paralysis” with 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 the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, Note Diseases of the Peripheral Nerves. The Board observes that the words “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA 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. Left Lower Extremity--Analysis Prior to February 1, 2017 The Veteran was provided with a December 2013 VA Back examination and a May 2014 VA Peripheral Nerve Conditions examination. The December 2013 examiner found that the Veteran experienced left lower extremity radicular pain due to radiculopathy. Specifically, the examiner noted that the Veteran’s left lower extremity experienced mild constant pain, mild numbness, and tingling. The examiner indicated that the Veteran’s left sciatic nerve root was involved and the Veteran experienced mild left lower extremity radiculopathy. The May 2014 VA examiner noted that the Veteran reported constant pain from his low back radiating into his left hip and that the Veteran’s left hip goes numb. The Veteran had a normal gait, though he used a cane, and the examiner indicated that his sciatic nerve was normal. The Veteran was then provided with a March 2016 VA Back Examination. The examiner indicated that the Veteran did not have radicular pain or any other sign or symptom of radiculopathy. Additionally, the Veteran’s contemporary VA treatment records indicated that he sought treatment for pain in his low back, left hip, and left foot, yet his treatment records did not indicate a level of severity for his lower extremity radiculopathy that was worse than the above VA examinations. For this period, the Veteran’s VA treatment records and VA examinations indicate that he experienced symptoms of, and was treated for, radiculopathy. However, they do not contain evidence that the severity of the Veteran’s condition was at any time worse than mild. As noted above, some of the VA examiners even indicate that the Veteran was not experiencing any radicular symptoms at all. As such, there is no evidence that for this period on appeal that the Veteran’s left lower extremity radiculopathy was worse than mild. Thus, the evidence in the claims file indicates that the Veteran’s left lower extremity radiculopathy most closely approximated mild incomplete paralysis for this period. As such, the Veteran’s claim for a disability rating in excess of 10 percent for his lower left extremity radiculopathy for this period must be denied. The evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. Period from February 1, 2017 to September 22, 2020 The Veteran was provided with a February 2017 VA Peripheral Nerve Conditions Examination. During this examination, the Veteran reported that pain and tingling radiate down from his left thigh into his foot and that he has numbness in the left leg. The Veteran reported that his left leg feels week from the hip down and that he cannot walk for more than half of a block before his left leg hurts too much to continue. The examiner noted that the Veteran’s left lower extremity experienced moderate intermittent pain, mild numbness, mild paresthesias/dysesthesias, and tingling. Sensation testing for light touch and vibration of the left lower extremity was normal while deep tendon reflex testing was normal at the knee level, and absent at the ankle level. The examiner reported that temperature and pin prick sensation were decreased. Further, the examiner indicated that the Veteran experienced mild incomplete paralysis of the sciatic nerve. During his June 2019 Board Hearing, the Veteran testified that it is difficult for him to walk long distances, but regarding his left leg, he did not indicate that his symptoms had worsened or that he was experiencing any symptoms more severe than previously evaluated. Additionally, the Veteran’s contemporary VA treatment records indicated that he sought treatment for pain in his low back and left leg, as well as treatment for his left leg radiculopathy, yet his treatment records did not indicate a level of severity for his lower extremity radiculopathy that was worse than the above VA examinations. For this period, the Veteran’s VA treatment records and VA examinations indicate that he experienced symptoms of, and was treated for, radiculopathy. However, they do not contain evidence that the severity of the Veteran’s condition was at any time worse than moderate. As such, there is no evidence that for this period on appeal that the Veteran’s left lower extremity radiculopathy was worse than moderate. Thus, the evidence in the claims file indicates that the Veteran’s left lower extremity radiculopathy most closely approximated moderate incomplete paralysis for this period. As such, the Veteran’s claim for a disability rating in excess of 20 percent for his lower left extremity radiculopathy for this period must be denied. The evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. Period from September 23, 2020 to Present As part of the Board’s August 2019 remand, the Veteran was provided with a September 2020 VA Peripheral Nerve Conditions Examination. During this examination, the Veteran reported that pain and tingling radiate into his bilateral legs and that his left leg gives out on him occasionally. The Veteran reported that he has difficulty sitting and standing, difficulty walking for long distances, and that he must use a cane when he ambulates. The examiner noted that the Veteran’s left lower extremity experienced severe intermittent pain, moderate numbness, moderate paresthesias/dysesthesias, and tingling. Sensation testing for light touch and vibration of the left lower extremity was decreased while deep tendon reflex testing was normal at the knee level, and hypoactive at the ankle level. The examiner reported the Veteran had an antalgic gait. Further, the examiner indicated that the Veteran experienced moderately severe incomplete paralysis of the sciatic nerve. Prior to the September 2020 examination, the Veteran’s VA treatment records indicate that he was treated for radiculopathy, however they do not contain evidence regarding the severity of the Veteran’s condition. Additionally, prior to the September 2020 examination the Veteran’s lay statements do not indicate his left leg had worsened since his last examination. As such, the September 2020 examination is the first instance that the Veteran’s condition worsened to become moderately severe. Thus, the evidence in the claims file indicates that, for this period, the Veteran’s left lower extremity radiculopathy most closely approximates moderately severe incomplete paralysis. As such the Veteran is entitled to a disability rating of 40 percent for his service-connected left lower extremity radiculopathy, effective September 23, 2020, the date the evidence showed an increase was warranted. A higher 60 percent evaluation is not warranted as the evidence of record does not reflect that the Veteran has severe paralysis of his lower left extremity. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. As such, the Veteran is entitled to a 40 percent disability rating for his left lower extremity radiculopathy, but no higher for this period. Right Lower Extremity—Analysis Period Prior to September 23, 2020 The Veteran first indicated that he was experiencing pain radiating down into his right leg during the March 2016 VA Back Examination. During his February 2017 VA Peripheral Nerve Conditions examination, the Veteran indicated that he was experiencing constant pain in his lower back and right hip. However, these examiners did not indicate that the Veteran was experiencing any radicular symptoms in his right lower extremity. During his June 2019 Board hearing, the Veteran testified that his right lower extremity radicular pain is constant and he has difficulty walking long distances. However, he indicates that his right leg symptoms do not cause him much problems. Additionally, the Veteran’s contemporary VA treatment records indicated that he sought treatment for pain in his low back and left leg radiculopathy, however, the treatment records are silent regarding his right leg. Thus, the evidence in the claims file indicates that the Veteran’s right lower extremity radiculopathy most closely approximated mild incomplete paralysis for this period. As such, the Veteran’s claim for a disability rating in excess of 10 percent for his lower right extremity radiculopathy for this period must be denied. The evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. Period from September 23, 2020 As part of the Board’s August 2019 remand, the Veteran was provided with a September 2020 VA Peripheral Nerve Conditions Examination. During this examination, the Veteran reported that pain and tingling radiate into his bilateral legs. The Veteran further reported that he has difficulty sitting and standing, difficulty walking for long distances, and that he must use a cane when he ambulates. The examiner noted that the Veteran’s right lower extremity experienced moderate intermittent pain, moderate numbness, moderate paresthesias/dysesthesias, and tingling. Sensation testing for light touch and vibration of the right lower extremity was decreased while deep tendon reflex testing was normal at the knee level, and hypoactive at the ankle level. The examiner reported the Veteran had an antalgic gait. Further, the examiner indicated that the Veteran experienced moderate incomplete paralysis of the sciatic nerve. Prior to the September 2020 examination, the Veteran’s VA treatment records indicate that he was treated for radiculopathy, however they do not contain evidence regarding the severity of the Veteran’s condition. As such, the September 2020 is the first instance that the Veteran’s condition worsened to become moderate in severity. Thus, the evidence in the claims file indicated that, for this period, the Veteran’s right lower extremity radiculopathy most closely approximates moderate incomplete paralysis. As such the Veteran is entitled to a disability rating of 20 percent for his service-connected right lower extremity radiculopathy, effective September 23, 2020, the date the evidence showed an increase was warranted. A higher 40 percent evaluation is not warranted as the evidence of record does not reflect that the Veteran has moderately severe paralysis of his lower right extremity. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. As such, the Veteran is entitled to a 20 percent disability rating for his right lower extremity radiculopathy, but no higher for this period. TDIU As part of the prior August 2019 Board remand the Veteran was given an opportunity to submit an updated VA Form 21-8940. The RO notified the Veteran of his need to submit an updated form, how to do so, and provided the Veteran a new Form 21-8940 in October 2020. However, to date the Veteran has not submitted an updated VA Form 21-8940. Previously in the record, the Veteran had submitted a January 2005 VA Form 21-8940 Application for Increased Compensation Based on Unemployability which indicated that he last worked in 2004 as a truck driver. However, recent VA treatment records indicate that the Veteran is currently employed as a truck driver. The Board notes that while these records indicate that the Veteran is employed, they do not provide enough information to determine whether his employment is substantially gainful. As such, the Board finds that a remand is required in order to provide the Veteran with an additional chance to submit an updated VA Form 21-8940 along with current information pertaining to his employment and employment history. In doing so, the Board reminds the Veteran that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, it is incumbent upon him to cooperate with the VA in developing his claims, consistent with the directives discussed below. Further, the Board notes, that if the Veteran fails to comply with this request it could result in his TDIU claim being denied. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge regarding the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Send the Veteran a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability and ask that he fully complete the form. Notify him that failure to comply with this request may result in his TDIU claim being denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.