Citation Nr: 21062056 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-08 256 DATE: October 6, 2021 ORDER Entitlement to service connection for radiculopathy of the right upper extremity is denied. Entitlement to service connection for radiculopathy of the left upper extremity is denied. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity associated with lumbar spine degenerative arthritis with intervertebral disc syndrome (IVDS) is denied. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity associated with lumbar spine degenerative arthritis with IVDS is denied. FINDINGS OF FACT 1. The Veteran does not have current radiculopathy or neuropathy of the right upper extremity nor has he had such disability any time incident to the claim. 2. The Veteran does not have current radiculopathy or neuropathy of the left upper extremity nor has he had such disability any time incident to the claim. 3. Radiculopathy of the right lower extremity associated with lumbar spine degenerative arthritis with IVDS is not manifested by nor does it approximate moderately severe incomplete paralysis of the sciatic nerve. 4. Radiculopathy of the left lower extremity associated with lumbar spine degenerative arthritis with IVDS is not manifested by nor does it approximate moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for service connection for radiculopathy of the right upper extremity are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for radiculopathy of the left upper extremity are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a rating in excess of 20 percent for right lower extremity associated with lumbar spine degenerative arthritis with IVDS have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.124a, DC 8520. 4. The criteria for a rating in excess of 20 percent for left lower extremity associated with lumbar spine degenerative arthritis with IVDS have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who served on active duty from February 1977 until February 1988, appeals a September 2017 rating decision. The Veteran appeared at a Board hearing in June 2020; a transcript is of record. With respect to the Board hearing, the undersigned clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran's claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. The matters were remanded most recently in March 2021 for examination, as examinations ordered in an August 2020 Board remand could not be accomplished due to COVID19-related concerns. The matters have been returned to the Board. Service Connection Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they manifested to a compensable degree within a presumptive period following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is also warranted for disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means 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); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for radiculopathy of the right upper extremity is denied. 2. Entitlement to service connection for radiculopathy of the left upper extremity is denied. The Veteran seeks service connection for these disabilities, claiming they are secondary to his service-connected cervical spine disability. STRs are absent complaints of or treatment for an upper extremity nerve disability or radiculopathy. The December 1987 separation examination showed normal upper extremities and neurologic examination. The issue for the Board is whether the Veteran has current disability that began during service or is at least as likely as not related to an in-service injury or disease or is proximately due to or aggravated by a service-connected disability. The Board concludes that the Veteran does not have a current right or left upper extremity radiculopathy and has not had any such disorder at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The competent, credible evidence fails to show current disability. The weight of the evidence is against finding current disability due to disease or injury as to the claim. VA examination dated in August 2013 noted there was no radicular pain or any other signs or symptoms due to radiculopathy. In May 2015, Dr. P. noted a diagnosis of radiculopathy. In December 2015 the Veteran complained of neck pain with radiation of the pain to the upper extremities with numbness and tingling in the last three fingers of the right hand. The Veteran underwent a total discectomy of C4-5 and C5-6; bilateral decompression of the roots of C4-5, C5-6; anterior fusion using cages on C4-5, C5-6 and instrumentation with a plate from C4-6. In October 2016 there was a diagnosis of status post anterior cervical fusion of C4-5, C5-6 with discectomy. VA treatment records showed complaints of bilateral numbness to the hands in March 2015. At a July 2016 VA examination, the Veteran reported radicular pain radiating to both upper extremities starting around 2006, numbness from arms down to fingers. Following the evaluation, the examiner stated there was no radicular pain or any other signs or symptoms due to radiculopathy. Muscle strength was 5/5 in elbow flexion and extension, wrist flexion and dorsiflexion and finger flexion and abduction. Deep tendon reflexes were 2+. Sensory exam was normal in shoulder area, inner/outer forearm and hand/fingers. Although he claimed symptoms and range of motion loss of the cervical spine, there was no objective evidence during examination. The Veteran testified in 2020 that he continued to have symptoms. The representative requested a new examination given that an October 2017 VA treatment record reported the Veteran had radiating upper arm pain, some prickling sensation and hot and cold sensation. VA cervical spine examination in May 2021 yielded the examiner's opinion that there was no diagnosis of upper extremity radiculopathy S/P discectomy. There was no chronic diagnosis for peripheral neuropathy, as the objective examination was normal. It was noted that symptoms are subjective only and thus a Nexus has not been established. Corresponding VA Peripheral nerves examination also yielded a finding of all normal upper extremity nerves. The examiner explained there are several types of neuropathy, but the most common includes diabetic neuropathy. This most often damages the nerves located in the feet and legs and occurs when one has diabetes. They cited to ncbi.nlm.nih.gov et al. Nerve conduction testing 2010 was void of diagnosis for upper extremity peripheral nerve condition. The examiner concluded that the file does not support diagnosis for Radiculopathy or Neuropathy of either upper extremity. The Board accords substantial probative weight to the competent medical evidence, the 2021 examinations and the treatment records, which are the most probative evidence that there is no current disability. The examiner's conclusions are wholly supported by the examination and were made following review of the record. The Veteran's assertions are outweighed by this evidence. Due to the absence of credible proof of a current disability due to disease or injury, there is no valid claim for service connection on any basis. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability at any point during the claim or appeal period. Brammer v. Derwinski, 3 Vet. App. 223 (1992). It follows that there must be a recognized disease or injury. The Board acknowledges that the Veteran indeed may report his perception of symptoms. The issue of etiology here is, ultimately, medically complex, and the Board finds the overwhelming medical evidence, including the 2021 medical examination evidence, and the observations in the treatment record, more probative. We simply find no current disability due to disease or injury based on the weight of the competent evidence. The preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran appeals the rating for these conditions, associated with IVDS. Both the right and left lower extremities are rated based on sciatic nerve impairment under DC 8520, Diseases of the Peripheral Nerves. 38 C.F.R. § 4.124a. This DC is the most advantageous and appropriate DC for both of the lower extremity neuropathies considering the manifestations that will be discussed below. See 38 C.F.R. § 4.25, 4.14. 3. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity associated with lumbar spine degenerative arthritis with IVDS is denied. 4. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity associated with lumbar spine degenerative arthritis with IVDS is denied. The question for the Board is whether the Veteran's bilateral radiculopathy of either lower extremity meets or more nearly approximates the criteria for a higher rating. Under DC 8520, an 80 percent rating will be assigned where there is complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. A 60 percent rating is warranted where there is severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. 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. Id. We find that there was not more than moderate incomplete paralysis shown or approximated for either lower extremity during the appeal period, and the appeal must be denied. At the June 2020 hearing, the Veteran reported worsening of the lower extremity radiculopathy since the last VA examination in 2017. He felt his lower extremity muscles were shrunken or flabby because he no longer gets the exercise that he used to get due to radiculopathy in his legs and his back. Of note, the VA examination in August 2017 reflects moderate intermittent pain as a sign of radiculopathy with sciatic nerve involvement on the right and left. Sensory examination was normal. VA back and nerve examinations in May 2021 reflect mild bilateral lumbar nerve root symptoms of radiculopathy to include mild intermittent pain (usually dull), mild paresthesias and/or dysesthesia and mild numbness caused by sciatic nerve of the lower extremities. Muscle strength testing was 5/5, with no muscle atrophy. Reflex examination was normal on the right with 2+ (ankle) and 2+ (knee). Sensory examination was normal bilaterally. It was noted at the back exam that there was no recent physical therapy, but he does continue to do his stretching exercises. He takes Tramadol 50 mg as needed and Gabapentin 300 mg at bedtime. He reported he continues to have back pain and sciatic nerve pain greater in left than right, and he reported tightness from buttocks to calf especially when walking. The pain runs down the sciatic nerve starting in the glute and ending behind the knee. The pain is intermittent and ranges 6/10 to 9/10. A slow steady gait with use of cane was due to ankle and foot conditions. A VA examiner explained that peripheral neuropathy sciatic pain is produced when one of the nerve roots in the spinal cord becomes pinched. The claims file supports diagnosis of IVDS but does not support individual nerve root neuropathies other than sciatica which is a lumbar radiculopathy condition, not a peripheral nerve condition. These May 2021 VA examination findings do not suggest there is moderately severe incomplete paralysis of the sciatic nerve. Moderately severe incomplete paralysis was specifically noted as not present by the examiner in the peripheral nerves examination Indeed, they stated the sciatic nerve was normal. The VA treatment records for the appeal period are consistent with the May 2021 VA examination reports in that they do not remotely support more than moderate incomplete paralysis. Critically, no medical professional assessed more than moderate sciatic nerve paralysis. The Board also notes the Veteran's candid testimony wherein he discussed his problems with his lower extremity neuropathies. However, we find that his described limitations, when combined with the medical record, result in a disability picture for each lower extremity that fits squarely within the criteria contemplated by the assignment of the current 20 percent ratings. We note that there was no muscle atrophy on the most recent examination despite his assertion. More than moderate incomplete paralysis of the sciatic nerve of either lower extremity is not suggested by any evidence, as the findings are wholly sensory. See 38 C.F.R. § 4.124a While the Veteran asserts he had greater than moderate incomplete sciatic paralysis in both lower extremities, the issue of the degree of paralysis is, ultimately, medically complex, and the Board finds the overwhelming medical evidence, including the 2021 medical examination evidence, and the observations in the treatment record, more probative as to degree of incomplete paralysis. For all the foregoing reasons, the preponderance of the evidence is against a rating for either lower extremity in excess of 20 percent. Hart v. Mansfield, 21 Vet. App. 505 (2007). H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.