Citation Nr: 21062380 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-45 281 DATE: October 7, 2021 ORDER The portion of the June 30, 2021 Board of Veterans' Appeals (Board) decision granting an initial rating of 40 percent for right lower extremity radiculopathy is vacated. The portion of the June 30, 2021 Board decision granting an initial rating of 40 percent for left lower extremity radiculopathy is vacated. An initial rating of 40 percent, but no higher, for right lower extremity radiculopathy is granted. An initial rating greater than 40 percent, but no higher for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. The portion of the June 30, 2021 Board decision granting initial ratings of 40 percent for bilateral lower extremity radiculopathy was prematurely and erroneously issued. 2. Since September 16, 2013, the Veteran's bilateral lower extremity radiculopathy manifested with symptoms approximating "moderately severe" incomplete paralysis. CONCLUSIONS OF LAW 1. The portion of the Board's June 30, 2021 decision granting an initial rating of 40 percent for right lower extremity radiculopathy was not in accordance with the Veteran's due process rights and must be vacated. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1000. 2. The portion of the Board's June 30, 2021 decision granting an initial rating of 40 percent for left lower extremity radiculopathy was not in accordance with the Veteran's due process rights and must be vacated. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1000. 3. Since September 16, 2013, the criteria for an initial rating of 40 percent for right lower extremity radiculopathy have been met. 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8250. 4. Since September 16, 2013, the criteria for an initial rating greater than 40 percent for left lower extremity radiculopathy have been met. 38 C.F.R. § 4.124a, DC 8250. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1981 to November 1998. VA received his increased rating claim on September 16, 2013. As explained below, the June 2021 Board decision is vacated to the extent that it prematurely granted ratings greater of 40 percent for bilateral lower extremity radiculopathy. However, the increased rating claims are readjudicated in this decision and the 40 percent ratings are granted. PARTIAL VACATUR The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. In April 2020, the Board granted 20 percent ratings for bilateral lower extremity radiculopathy and the Veteran appealed these ratings to the United States Court of Appeals for Veterans' Claims (Court). In a May 2021 Joint Motion for Partial Remand (JMPR), the Court vacated the ratings and remanded the claim to the Board for further development. On June 3, 2021, VA notified the Veteran that he had 90 days from that date to submit additional argument or evidence to support the claims the Court remanded. However, in a June 30, 2021 decision, the Board granted 40 percent ratings for left and right lower extremity radiculopathy. The June 2021 decision denied ratings higher than 40 percent and therefore was not a full grant of the benefit sought on appeal. The June 2021 Board decision was erroneously issued to the extent that it adjudicated the increased rating claims before the 90-day evidence submission period expired. As a result, the Veteran was denied due process of law and to the extent that the June 2021 Board decision adjudicated the bilateral lower extremity radiculopathy claims, it is vacated. 38 C.F.R. § 20.904(a)(1). However, the Board presently adjudicates the Veteran's claimed entitlement to increased ratings for bilateral lower extremity radiculopathy and grants the 40 percent ratings, originally granted in the June 2021 Board decision. In June 2021 correspondence, the Veteran asserted that the evidence of record was sufficient to evaluate the severity of his disabilities. He reported he had no additional evidence to submit and declined any future VA examinations. The 90-day period for the submission of additional evidence and argument has elapsed, and the Board received additional argument from the Veteran through his representative in September 2021. Because the Board's present action essentially confirms its June 2021 decision, this action does not prejudice the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The remaining issues that were remanded in the June 2021 Board decision (service connection for a cervical spine disorder and entitlement to a TDIU) are not vacated. The VA Regional Office (RO) has not completed the Board's remand directives and those issues will be addressed in a separate decision. Entitlement to initial ratings greater than 40 percent for bilateral lower extremity radiculopathy since September 16, 2013 VA assigns disability ratings by applying criteria in its 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 of which two evaluations should 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 disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). In assigning a higher disability rating, VA determines 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). Lower extremity radiculopathy is rated according to DC 8520, which provides ratings for paralysis of the sciatic nerve. DC 8520 provides a 10 percent rating for mild incomplete paralysis; a 20 percent rating for moderate incomplete paralysis; and a 40 percent rating for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis. See 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis," indicates a degree of lost or impaired function substantially less than the type picture 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 should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. Terms such as "mild," "moderate" and "moderately severe" are not defined in the regulatory criteria, and the Board must make considerations as to their applicability to symptoms reported in the record in a manner that is equitable and just. See 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Disability ratings for neurological conditions are ordinarily assigned in proportion to impairment of motor, sensory, or mental function. See 38 C.F.R. § 4.124a. In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory. Special consideration is given to complete or partial loss of use of one or more extremities and disturbances of gait. In a September 2013 VA primary care record, the Veteran reported severe muscle spasms in his back and legs. During a July 2014 VA examination, the Veteran described "constant, throbbing pain" in his lower back and lower extremities. He reported neurological symptoms of severe constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias (burning, tingling and/or prickling sensations), and severe numbness in his bilateral lower extremities. He reported regularly using a cane due to a painful gait. Testing revealed decreased sensation and reduced muscle strength in the lower extremities. Deep tendon reflexes were absent in both legs and the Veteran was unable to perform straight leg testing (a positive straight leg test suggests radiculopathy). The Veteran did not have muscle atrophy, muscle spasm, guarding, or localized tenderness. The VA examiner noted involvement of the sciatic and femoral nerves and opined the Veteran's radiculopathy was "severe." In August 2014, the Veteran reported having "charley horses" in his legs four times per week. In a February 2016 VA physical therapy note, the Veteran reported worsening lower back pain, muscle spasms, and increasing sciatic nerve issues. The attending clinician noted the Veteran had intermittent bilateral lower extremity radiculopathy but denied symptoms during the examination. However, the clinician opined the Veteran's nerve condition was worsening. During a March 2017 VA examination, the Veteran reported pain, numbness, and tingling in both legs and continued to use a cane regularly. The VA examiner noted neurological symptoms of mild intermittent pain, mild paresthesias/dysesthesias, and mild numbness in his bilateral lower extremities. Physical examination revealed normal muscle strength, deep tendon reflexes, and normal sensation to light touch. Straight leg testing was negative bilaterally. The Veteran did not have muscle spasm, muscle atrophy, or guarding. The examiner noted objective evidence of mild to moderate lumbar tenderness without swelling, asymmetry, or spasms. The examiner noted sciatic nerve involvement and characterized the Veteran's radiculopathy as "mild." During an April 2019 VA examination, the Veteran reported lower back spasms and pain that radiated into his lower legs and calves, and intermittent numbness in the soles of his feet. He reported constantly using a back brace and regularly using a cane. The VA examiner noted neurological symptoms of mild intermittent pain, mild paresthesias/dysesthesias, and mild numbness of the bilateral lower extremities. On physical examination, the Veteran demonstrated guarding and muscle spasm that did not result in an abnormal gait or spinal contour. He had normal muscle strength, deep tendon reflexes, and normal sensation to light touch. The Veteran did not have muscle atrophy. Straight leg testing was positive bilaterally, which indicates the presence of radiculopathy. The VA examiner concluded that the Veteran's radiculopathy was "moderate." In January 2020, the Veteran submitted a disability benefits questionnaire (DBQ) completed by his private physician. The Veteran continued to report severe muscle spasms and pain radiating from his lower back to his ankles. He reported these symptoms caused difficulty with prolonged standing, walking, and performing activities of daily living (ADLs), including bathing. The Veteran reported regularly using a cane and back brace for stability. On physical examination, the examiner noted the Veteran had a normal spinal contour but had an abnormal gait due to muscle spasm. The Veteran had normal muscle strength, deep tendon reflexes, and sensation to light touch, and did not have muscle atrophy. Straight leg testing was positive bilaterally. The examiner noted neurological symptoms of moderate constant pain, moderate intermittent pain, moderate dull pain, moderate paresthesias/dysesthesias, and moderate numbness of the lower extremities. The examiner indicated there were no other objective findings due to radiculopathy and no other neurological abnormalities. Overall, he described the Veteran's lower extremity radiculopathy as "moderate." In October 2020 VA record, the Veteran denied pain, numbness, tingling or swelling in his lower extremities. Since that time, VA records do not contain specific reports of radicular symptoms involving the legs, however radiculopathy remains on the Veteran's "problem list." Since September 16, 2013, the Veteran's bilateral lower extremity radiculopathy manifested with reports of pain radiating from the lower back to the ankles; muscle spasm causing an abnormal gait; moderate to severe intermittent pain, constant pain, paresthesias/dysesthesias, and numbness; difficulty with prolonged sitting, standing, and ADLs; and required regular use of a cane and back brace. While different medical providers have characterized the Veteran's radiculopathy as "mild," "moderate," or "severe," the Veteran's symptoms most closely approximate a "moderately severe" disability. For the entire appellate period, the Veteran has reported radiating pain and frequent muscle spasms that required regular use of a cane and altered his gait. The July 2014 VA examiner noted evidence of reduced muscle strength and sensation and absent deep tendon reflexes in the lower extremities. Although later examinations did not find evidence of reduced muscle strength, reflexes, or sensation, the Veteran consistently demonstrated positive straight leg tests. Given these symptoms, a 40 percent rating is still the most appropriate evaluation. The assignment of ratings of 40 percent is warranted. The next highest rating under DC 8520 (60 percent) requires "severe" incomplete paralysis with "marked" muscular atrophy. See 38 C.F.R. § 4.124a, DC 8520. While the July 2014 VA examiner described the Veteran's radiculopathy as severe, no medical provider has found evidence of marked muscular atrophy of the lower extremities. The Board notes that M21-1 administrative manual indicates that "moderately severe" incomplete paralysis may be shown with evidence of "Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected." See M21-1, V. iii. 12. A. 2. c. ("Assigning Level of Incomplete Paralysis, Neuritis, or Neuralgia"). However, marked muscular atrophy is expected for "severe" paralysis of the sciatic nerve. Id. As noted above, the Veteran has had reflex/motor impairment and sciatic nerve involvement, but not marked muscular atrophy. His lower extremity radiculopathy is, at most, "moderately severe." See Overton v. Wilke, 30 Vet. App. 257, 263-4 (2018). (CONTINUED ON NEXT PAGE) For the reasons above, an initial rating of 40 percent for left lower extremity radiculopathy and a separate 40 percent for right lower extremity radiculopathy are granted. As the preponderance of the evidence is against assigning higher ratings, the benefit of the doubt doctrine does not apply. See Gilbert, above. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.