Citation Nr: 21069018 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-49 980 DATE: November 17, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity prior to August 21, 2020, is denied. Entitlement to a disability rating of 20 percent, but not higher, for radiculopathy of the left lower extremity from August 21, 2020, is granted. Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity prior to August 21, 2020, is denied. Entitlement to a disability rating of 20 percent, but not higher, for radiculopathy of the right lower extremity from August 21, 2020, is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for a left knee condition is remanded. Entitlement to a disability rating in excess of 20 percent for a cervical spine condition is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to August 21, 2020, the Veteran's radiculopathy of the left lower extremity manifested as mild incomplete paralysis. 2. From August 21, 2020, the Veteran's radiculopathy of the left lower extremity manifested as moderate incomplete paralysis. 3. Prior to August 21, 2020, the Veteran's radiculopathy of the right lower extremity manifested as mild incomplete paralysis. 4. From August 21, 2020, the Veteran's radiculopathy of the right lower extremity manifested as moderate incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to August 21, 2020, the criteria for entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 2. From August 21, 2020, the criteria for entitlement to a disability rating of 20 percent, but not higher, for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 3. Prior to August 21, 2020, the criteria for entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 4. From August 21, 2020, the criteria for entitlement to a disability rating of 20 percent, but not higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to February 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of February and March 2017 issued by the Department of Veterans Affairs (VA) Regional Office (RO). The undersigned Veterans Law Judge (VLJ) conducted a hearing on these matters in July 2021. A transcript of that hearing is of record. 1. Entitlement to increased disability ratings for bilateral radiculopathies of the lower extremities. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's bilateral radiculopathies of the lower extremities are each rated as 10 percent disabling under Diagnostic Code (DC) 8520. See August 2021 Rating Codesheet at 2. The applicable rating criteria provide that a disability rating in excess of 10 percent is not assigned unless there is moderate incomplete paralysis. See 38 C.F.R. § 4.124a, DC 8520. A disability rating of 40 percent is not assigned unless such incomplete paralysis is moderately severe. Id. The Veteran has undergone two VA examinations addressing these issues during the rating period on appeal. A prior examination of January 2017 noted the Veteran's assertions of "[radiating] pain from his lower back to [both] legs/feet since 2009[,] [which] lasts... minutes to [an] hour[,] occasionally prolonged for a day" but "no numbness or tingling[.]" See January 2017 VA Examination Report (Nerves) at 2. This examiner found bilateral mild incomplete paralysis of the sciatic nerve. Id. at 6; see also January 2017 VA Examination Report (Lumbar) at 5-6 (noting mild overall severity of bilateral radiculopathy based on findings of moderate intermittent pain, no constant pain, no paresthesias or dysesthesias, and no numbness). A subsequent VA examination of August 2020 again noted the Veteran's assertion that "pain goes down his buttock[s] to his legs." See October 2020 VA Examination Report (Lumbar) at 5. This examiner likewise found bilateral mild incomplete paralysis of the sciatic nerve. Id. at 10. However, in reaching this conclusion, this examiner noted no constant pain, severe intermittent pain, severe paresthesias or dysesthesias, and moderate numbness. Id. at 9. The examiner did not explain how these findings of increased individual symptoms are consistent with an unchanged conclusion as to the overall degree of incomplete paralysis. See id. at 12 (noting in pertinent part only that the Veteran's lumbar spine condition has "signs and symptoms consistent with [bilateral] [lower extremity] radiculopathy, [which] is caused by irritation and inflammation to the nerves traversing the pathological lumbar spine and results in the symptoms and finding[s] reported today on exam"); cf. id. at 10 (providing that for evaluation purposes, "when the involvement is wholly sensory, the evaluation should be for the mild, or at the most, the moderate degree") (emphasis added); see also id. at 12 (distinguishing radiating pain and sensory changes from objective clinical findings). The Board finds that the more severe individual symptoms noted by the August 2020 VA examiner support the inference that it is at least as likely as not that the Veteran's bilateral radiculopathies of the lower extremities have increased in severity during the rating period on appeal, and that the 20 percent rating criteria discussed above better approximate the Veteran's conditions. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.7, 4.124a, DC 8520. The assignment of a 20 percent disability rating for each of these conditions from August 21, 2020, is therefore warranted. The Board has considered whether an additional increase to the 40 percent rating discussed above is also warranted. However, the Board concludes that the 20 percent rating increase discussed above is more consistent with the cumulative evidence of record as well as with the VA examiners' other findings. See October 2020 VA Examination Report at 12 (distinguishing "a history of characteristic radiating pain and/or sensory changes in the legs" from "objective clinical findings, which may include the asymmetrical loss or decrease of reflexes, decreased strength[,] and/or abnormal sensation" in diagnosing radiculopathy); cf. id. at 8 (noting no muscle atrophy and normal muscle strength of the lower extremities in all areas save the hips, at which muscle strength was noted as 4 on a 5-point scale); see also id. at 9 (noting hypoactive deep tendon reflexes bilaterally); see also id. (noting decreased sensation of the foot or toes, but normal sensation of the lower leg or ankle, each of which is probative of the sciatic nerve); see also id. at 10 (noting no other neurologic abnormalities). The Veteran's medical treatment records support the inference that he experiences radicular pain as a result of these conditions, but do not otherwise contradict the examiners' findings as discussed above. The Veteran's lay assertions likewise do not contradict these findings. See July 2021 Transcript at 12-13. The Board therefore concludes that a disability rating in excess of 20 percent for each of these conditions from August 21, 2020, is not warranted. 38 C.F.R. § 4.124a, DC 8520. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence is against this portion of the Veteran's claim. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for a left knee condition. The Veteran's left knee condition is rated as 10 percent disabling under DC 5260. See August 2021 Rating Codesheet at 2. The record reflects that the Veteran has undergone knee replacement surgery during the pendency of his appeal. See July 2021 Transcript at 6; see also July 2021 Medical Treatment Records at 2 (noting that the Veteran "had knee replacement surgery (left) on [March 10, 2021]"). The applicable rating criteria provide that in cases of knee replacement, prior disability ratings under alternative rating criteria are to be replaced by a single rating under DC 5055. This DC, in turn, provides for a total disability rating "for [four] months following implantation of [the] prosthesis[.]" See 38 C.F.R. § 4.71a, DC 5055. A minimum disability rating of 30 percent is assigned following this initial temporary total rating. Id. Higher disability ratings may be assigned based on chronic residuals consisting of severe painful motion or weakness, or by analogy to other DC with intermediate degrees of residual weakness, pain, or limitation of motion. Id. The Veteran has not undergone a VA examination on this issue subsequent to his knee replacement. Additionally, the Board notes that the Veteran's last VA examination on this issue is inadequate to sustain adjudication because it did not provide estimates as to additional functional impairment experienced after repeated use over time. See January 2017 VA Examination Report (Knee) at 4; cf. Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) (providing that VA examiners are expected to provide estimates evaluating the additional degree of functional impairment experienced during flare-ups or after repeated use over time, and that direct observation under such conditions is not required). An additional VA examination is therefore warranted. 2. Entitlement to a disability rating in excess of 20 percent for a cervical spine condition. The Veteran's cervical spine condition is rated as 20 percent disabling under DC 5242. See August 2021 Rating Codesheet at 1-2. During the rating period on appeal, the Veteran has undergone a VA examination in March 2017. As discussed above, this examination is also inadequate to support adjudication because it likewise does not estimate additional functional impairment experienced following repeated use over time. See March 2017 VA Examination Report (Cervical Spine); cf. Sharp, 29 Vet. App. at 35. The subsequent medical evidence of record is mixed as to the severity of this condition. See July 2020 Medical Treatment Records at 5 (providing August 2019 treatment note observing "cervical ROM... able to fully flex, [extension] limited by axial neck pain... full lateral rotation and bend with pain at extremes bilaterally") (emphasis added); cf. August 2021 Medical Treatment Records at 16 (noting December 2019 MRI observing "[increased] posterior disc herniation and/or spondylosis [of] C6-7 compared [to] 2016 MR exam of the cervical spine"). Remand for an additional VA examination on this issue is therefore also warranted. 3. Entitlement to a TDIU. The undersigned VLJ previously found that the issue of entitlement to a TDIU had been raised by the evidence of record during the Veteran's hearing. See July 2021 Transcript at 8; see also Rice v. Shinseki, 22 Vet. App. 447 (2009). VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Because the Veteran's knee and cervical spine claims are also being remanded and could affect the Veteran's combined disability rating, the Board now finds that the issue of entitlement to a TDIU is inextricably intertwined with those claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that issues may be inextricably intertwined where the outcome of one claim could have a significant impact upon the outcome of another). Additionally, the Board notes that the Veteran is receiving benefits from the Social Security Administration (SSA). See July 2021 Transcript at 8-9. The Veteran's claims file does not include his full SSA records. See August 2021 SSA Letter (providing only that the Veteran has been found disabled by the SSA from October 2015). As these records are also relevant to the Veteran's TDIU claim, remand to obtain such records is also warranted. These matters are therefore REMANDED for the following action: 1. Schedule the Veteran for an examination before an appropriately-qualified examiner. The examiner shall review the claims file, including this remand, and evaluate the functional impairment of the Veteran's left knee condition. 2. Schedule the Veteran for an examination before an appropriately-qualified examiner. The examiner shall review the claims file, including this remand, and evaluate the functional impairment of the Veteran's cervical spine condition. 3. Obtain the Veteran's Social Security Administration records. 4. Adjudicate the issue of entitlement to a TDIU. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, Associate 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.