Citation Nr: 21004195 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-13 585 DATE: January 26, 2021 ORDER Entitlement to an evaluation in excess of 10 percent prior to December 18, 2019, and in excess of 20 percent from December 18, 2019, for left lower extremity radiculopathy is denied. Entitlement to an evaluation in excess of 30 percent for dysthymic disorder is denied. REMANDED Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Prior to December 18, 2019, left lower extremity radiculopathy was manifested by mild, incomplete paralysis of the sciatic nerve. 2. From December 18, 2019, left lower extremity radiculopathy is manifested by moderate, incomplete paralysis of the sciatic nerve. 3. The Veteran’s dysthymic disorder is manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 10 percent prior to December 18, 2019, and in excess of 20 percent from December 18, 2019, for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2020). 2. The criteria for entitlement to an evaluation in excess of 30 percent for dysthymic disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9433 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1982 to March 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions rendered in May 2012 and October 2012. In May 2017, the Veteran provided testimony at a Board hearing before the undersigned Veterans Law Judge (VLJ) at the Agency of Original Jurisdiction (AOJ). A transcript of that hearing is included in the electronic claims file. In December 2017 and April 2020, the Board remanded these matters for additional development. In a February 2020 DRO rating decision, the Veteran was awarded a 20 percent evaluation, effective December 18, 2019, for left lower extremity radiculopathy. The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved his claim. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to an evaluation in excess of 10 percent prior to December 18, 2019, and in excess of 20 percent from December 18, 2019, for left lower extremity radiculopathy Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). The Veteran is currently assigned 10 percent and 20 percent evaluations for his service-connected left lower extremity radiculopathy under Diagnostic Code 8520. He now seeks higher evaluations. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis with marked muscle atrophy is rated as 60 percent disabling. Complete paralysis of the sciatic nerve is characterized by foot dangles and drops, no active movement possible of muscle below the knee, flexion of knee weakened or (very rarely) lost and is rated as 80 percent disabling. Id. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Based on evidence of record during the time period prior to December 18, 2019 (including lay assertions from the Veteran, VA treatment records, and VA examination reports dated in February 2011 and March 2012), the Board has determined that the disability is primarily manifested by moderate numbness, radiating pain from the low back to the left lower extremity, normal strength, reflexes, and motor testing, assertions of lack of sensation of the left lower extremity, and decreased sensation to light touch in the left lower extremity. There were no findings concerning gait, trophic changes, or muscle atrophy. For example, the March 2012 VA examiner noted left lower extremity radicular symptoms of moderate numbness and decreased sensation, concluding that the Veteran had mild left lower extremity radiculopathy. Thus, the Board finds that the most probative evidence of record is against a finding that the disability was manifested by a level of impairment more than that analogous to mild, incomplete paralysis. Entitlement to an evaluation in excess of 10 percent during this time period is not warranted. Based on evidence of record during the time period from December 18, 2019 (including lay assertions from the Veteran, VA treatment records, and VA examination reports dated in December 2019 and July 2020), the Board has determined that the disability is primarily manifested by moderate numbness, moderate, constant pain in the left lower extremity, hypoactive deep tendon reflexes in the left knee and ankle, limping gait, and decreased sensation to light touch. There were no findings concerning trophic changes, use of assistive devices, or muscle atrophy. The July 2020 VA examiner noted left lower extremity radicular symptoms of mild constant as well as moderate intermittent left lower extremity pain, moderate numbness, moderate paresthesias, and decreased muscle strength as well as decreased sensation to light touch, concluding that the Veteran had moderate, incomplete paralysis of the left sciatic nerve. Thus, the Board finds that the most probative evidence of record is against a finding that the disability was manifested by a level of impairment more than that analogous to moderate, incomplete paralysis. Entitlement to an evaluation in excess of 20 percent during this time period is not warranted. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. The Board acknowledges that the Veteran is competent to report observable symptoms such as radiating pain, numbness, and paresthesias. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability. Competent evidence concerning the nature and extent of the Veteran’s service-connected disability has been provided by VA medical professionals who have examined him. The medical findings adequately address the criteria under which the disability is evaluated and clearly demonstrate the degree of impairment attributable to the service-connected disability. The Board accords these findings greater weight than the Veteran’s complaints as to left lower extremity radiculopathy symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Accordingly, the Veteran’s contention that he is entitled to increased evaluations for his left lower extremity radiculopathy is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings in the VA examination reports than to the Veteran’s general belief that he is entitled to higher ratings. In this case, evidence of record showed no distinct periods of time during the appeal period when the Veteran’s service-connected left lower extremity disability varied to such an extent that ratings greater or less than the 10 percent and 20 percent ratings currently assigned would be warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). In sum, the Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the current ratings and that the Veteran’s service-connected left lower extremity radiculopathy residuals do not meet the applicable criteria for evaluations in excess of the 10 percent and 20 percent ratings assigned. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s increased rating claims, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to an evaluation in excess of 30 percent for dysthymic disorder The Veteran seeks a higher evaluation for his service-connected dysthymic disorder, which is currently rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9433. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran’s service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, Diagnostic Code 9433. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF of 61 to 70 is defined as some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful relationships. VA treatment records dated from 2011 to 2020, VA examination reports dated in September 2012, January 2020, and July 2020, and the Veteran’s lay statements and hearing testimony showed that his service-connected dysthymic disorder was manifested by symptoms associated with a 30 percent rating (mild anxiety and concentration difficulties, insomnia, recurrent depressed mood, and mild memory loss), and an isolated finding in January 2020 of a symptom associated with a 50 percent rating (disturbances of motivation and mood). The Veteran was noted to maintain a good relationship with family, have a few friends, and enjoy reading. After leaving his job as a medical assistant due to the death of his girlfriend and conflict with a coworker, he was noted to be currently raising chickens and bees on a farm. The January 2020 VA examiner listed a diagnosis of chronic, persistent depressive disorder with anxious distress with associated secondary diagnoses of mild cannabis use disorder and alcohol use disorder in early remission. The Veteran was noted to have difficulty attending to or be easily distracted from the task at hand and have difficulty maintaining concentration and focus on work over a period of time, tending to skip from one task to another without completing the prior task. The Board finds the severity, frequency, and duration of the Veteran’s listed and unlisted symptoms continue to more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. The Veteran has reported that his symptoms were at times not present daily but would increase in severity with grief and low back pain. He has repeatedly denied experiencing chronic sleep impairment, suicidal ideation, homicidal ideation, delusions, and hallucinations and was noted to be able to provide self-care. Thus, the Board concludes that the type and degree of symptoms demonstrated during the appeal period are of similar frequency and severity as those contemplated for a 30 percent disability rating. Furthermore, the September 2012, January 2020, and July 2020 VA examiners all specifically found that the Veteran’s dysthymic disorder did not meet the criteria for an increased evaluation and was best summarized as approximating the occupational and social impairment for a 30 percent evaluation or less. In fact, the July 2020 VA examiner found that the Veteran’s dysthymic disorder was in remission and that his reported symptoms did not meet the criteria for DSM diagnosis or significantly impair his functioning. The assigned GAF scores ranging from of 50 to 65 during the appeal period are indicative of mild to serious symptomatology and mild to moderate but not considerable or total impairment in social and occupational functioning due to the service-connected dysthymic disorder with associated cannabis and alcohol use disorders. Based on the foregoing discussion, the Board finds that Veteran’s dysthymic disorder symptoms continue to more nearly approximate the rating criteria for a 30 percent rating during the appeal period. Evidence of record showed no distinct periods of time during the appeal period when the Veteran’s service-connected dysthymic disorder varied to such an extent that a rating greater or less than the 30 percent rating currently assigned would be warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board is cognizant that the Veteran is competent to attest to things he experiences through his senses, such as depressed mood and anxiety. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The statements from the Veteran are competent evidence to report his increased psychiatric symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469, 470 (1994). However, the more probative evidence of record does not indicate that the assignment of an evaluation in excess of 30 percent is warranted. In so finding, the Board notes that it weighed the lay and medical evidence and finds opinions rendered by VA medical professionals more probative given their expertise in evaluating psychiatric disorders. In sum, the Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the current rating and that the Veteran’s service-connected dysthymic disorder residuals do not meet the applicable criteria for an evaluation in excess of the 30 percent rating assigned. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s increased rating claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to a TDIU is remanded. There has not been substantial compliance with the Board’s previous April 2020 remand directives regarding the issue of entitlement to a TDIU. The Board notes that the recent July 2020, October 2020, and November 2020 VA examination reports/medical opinions only adequately covered the functional and psychological impacts from left lower extremity radiculopathy, spinal fusion residuals, and dysthymic disorder, only three of the Veteran’s five service-connected disabilities. The AOJ obtained an October 2020 VA medical opinion from an audiologist that clearly indicated there were no hearing examinations or treatment records available for review for the time period from June 5, 2012, to the present and that the current severity of the Veteran’s hearing loss was unknown. She noted that her medical opinion was based on the most recent VA hearing examination in August 2010. Another remand is required to obtain an adequate VA examination to assess the functional impact of the Veteran’s service-connected bilateral hearing loss and tinnitus disabilities on his ability to maintain substantial employment for the time period from June 5, 2012, to the present. Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, updated VA treatment records from Gainesville VAMC for the time period from September 2020 to the present should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran’s service-connected disabilities from Gainesville VAMC for the time period from September 2020 to the present and associate them with the record. 2. Obtain a VA audiological examination from an audiologist to determine the current severity as well as a full description of the effects of the Veteran’s service-connected bilateral hearing loss and tinnitus upon his ordinary activity, to include functional effects of his service-connected bilateral hearing loss and tinnitus that might tend to impair his ability to secure and follow substantially gainful employment, consistent with his education and occupational expertise for the time period from June 5, 2012, to the present. The electronic claims file must be made available to the examiner, and the examiner must specify in the report that the electronic claims file has been reviewed. The examiner must compile a full work and educational history. This opinion must be provided without consideration of the Veteran’s nonservice-connected disabilities or age. To the extent possible, the VA examiner must address the full effects of the functional and industrial impairment due to the Veteran’s service-connected bilateral hearing loss and tinnitus during the time period from June 5, 2012, to the present. The examiner must furnish a full description of the effects of those service-connected disabilities upon the Veteran’s ordinary activities, which include employment. 38C.F.R. § 4.10 (2020). In doing so, the examiner should fully describe what types of employment activities would be limited because of those service-connected disabilities and what types of employment activities would not be limited (if any). This description may include an opinion on such questions as whether the Veteran’s service-connected bilateral hearing loss and tinnitus precluded performing any specific tasks, etc. The examiner should provide an extensive discussion of the Veteran’s physical abilities as well as the effects of any psychological and functional limitations related to his service-connected bilateral hearing loss and tinnitus in the context of his daily activities, specifically employment, during the time period from June 5, 2012, to the present. The examiner should also discuss and reconcile the proffered medical opinion with the lay assertions and hearing testimony from the Veteran and the October 2020 VA medical opinion. 3. After completing the above actions and any other necessary development, the claim on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the evidence of record since the November 2020 SSOC. If the benefit on appeal remains denied, a SSOC must be provided to the Veteran and his attorney. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.