Citation Nr: 21069110 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-03 813 DATE: November 17, 2021 ORDER Entitlement to a 20 percent rating for left lower extremity radiculopathy is granted. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is denied. REMANDED Entitlement to a rating in excess of 10 percent for DJD of the lumbar spine is remanded. FINDINGS OF FACT 1. The Veteran's sciatic radiculopathy left lower extremity, most nearly approximated that productive of moderate incomplete paralysis or impairment; but not moderately severe, or severe incomplete paralysis, or complete paralysis of the sciatic nerve. 2. The Veteran's sciatic radiculopathy, right lower extremity, was productive of moderate incomplete paralysis or impairment; but not moderately severe, or severe incomplete paralysis, or complete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating for left lower extremity radiculopathy have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, DC 8520. 2. The criteria for entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1999 to October 1999, from January 2003 to December 2003, from July 2004 to August 3005, and from January 2010 to January 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2014 rating decision of the Agency of Original Jurisdiction (AOJ). The matter was previously before the Board in October 2019. The Board remanded the matter to the AOJ for further evidentiary development, which included providing a VA examination to assess the current severity of the Veteran's low back disability and the associated bilateral radiculopathy. The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. A review of the record reflects that the AOJ has substantially complied with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings for Bilateral Radiculopathy of the Lower Extremities 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). The Board will also consider entitlement to staged ratings to compensate for times since the claim was filed when the disability may have been more severe than at other times during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Currently, the Veteran is in receipt of a 10 percent rating for left sciatic radiculopathy pursuant to 38 C.F.R. § 4.124a, DC 8520. Under Diagnostic Code 8520 for sciatic nerve, 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 muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. 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 is for the mild, or at most, the moderate degree. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. 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. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran underwent VA back examinations in January 2014 and December 2019. Both examiners indicated a diagnosis for right lower extremity radiculopathy of moderate severity and left lower extremity radiculopathy of mild severity. In January 2014, the Veteran's right straight leg test was positive, and his left straight leg test was negative. The examiner documented moderate intermediate pain, mild paresthesias and/or dysesthesias, and moderate numbness of the right leg. As to the left leg, the VA examiner documented mild numbness. The examiner found no evidence of paresthesias, dysesthesias, intermittent pain, or muscle atrophy. In his January 2015 notice of disagreement, the Veteran competently and credibly reported that constant pain and numbness in his lower extremities limited his ability to complete daily activities. He noted that it affected his work performance to the point that he left the military. Additionally, he claimed that his "daily activities now consist of almost nothing, due to...constant loss of feeling in my lower extremities." In his January 2017 VA Form 9, the Veteran reported constant numbness and moderate pain that never seemed to go away. He noted that the pain was only dulled by pain medication. At the December 14, 2019 exam, the Veteran's bilateral straight leg tests were positive. The VA examiner documented mild constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias and mild numbness bilaterally. Again, the examiner found no evidence of muscle atrophy. Despite identical bilateral symptoms, the examiner indicated mild severity of the left lower extremity and moderate severity of the right lower extremity. For the entire period on appeal, the competent medical and lay evidence reflects that the Veteran's radiculopathy of the left lower extremity was manifested by wholly sensory symptoms of numbness and burning sensation with pain. As the Veteran's symptoms were wholly sensory, his rating is limited to mild or moderate. Given that the Veteran has competently reported constant bilateral pain for the entire period on appeal, the Board finds that his symptoms warrant the maximum rating for wholly sensory symptoms, moderate, which is commensurate with a 20 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520.The Board acknowledges both VA examiners characterized the Veteran's left lower extremity radiculopathy as mild. However, the examiners' use of terminology is not dispositive and instead, all evidence must be considered. 38 C.F.R. §§ 4.2, 4.6. Notably, despite identical bilateral symptoms, the December 2019 examiner indicated mild severity of the left lower extremity and moderate severity of the right lower extremity. A higher rating is not warranted for either extremity. The record does not support that the Veteran's lower extremity symptoms were moderately severe, as required for a 40 percent rating, because they were manifested by wholly sensory symptoms. Nor does the record support that his symptoms were severe and with marked muscular atrophy. The medical evidence during this period of the appeal does not indicate muscle atrophy of the Veteran's lower extremities. Nor has he asserted that he had muscle atrophy of the lower extremities. There is also no indication that the Veteran suffers from muscle atrophy or loss of reflexes. Thus, a 60 percent rating is not warranted. Nor does the record indicate that the Veteran suffered from complete paralysis during this period of the appeal. The record does not suggest nor has the Veteran indicated that either foot dangles or drops, that there is no active movement below his knee or that his flexion is weakened. Lacking competent medical evidence of complete paralysis of the sciatic nerve, an 80 percent rating is not warranted. Given the evidence, the Board finds that ratings of 20 percent, but no higher, for the Veteran's radiculopathy of the right and left lower extremities are warranted. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for DJD of the lumbar spine is remanded. The Veteran was afforded a VA Back Conditions examination in December 2019. He described daily flare-ups brought on by any type of movement in any position. The flareups required him to sit or lay down due to fatigue and dramatically increased pain. Degenerative joint disease of the spine was diagnosed. 38 C.F.R. §§ 4.40 and 4.45 permit consideration of a higher evaluation to be awarded where there is additional functional loss and/or limitation of motion due to factors such as pain, weakened movement, excess fatigability, and incoordination during flare-ups and/or after repeated use over time.). See Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); see also Deluca v. Brown, 8 Vet. App. 202, 205-06 (1995). During the course of this appeal the Court of Appeals for Veterans Claims (CAVC) held that this additional loss can be considered under the general Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with the loss contemplated by ankylosis, or if the Veteran's range of motion is functionally equivalent to ankylosis. See Chavis v. McDonough, No. 18-2928, 2012 LEXIS 660 (Vet. App. April 16, 2021). The Board finds that the December 2019 VA examination is incomplete and in light of the holding in Chavis an addendum opinion is warranted to inform the Board whether the Veteran's lumbar spine disability is functionally equivalent to ankylosis during flareups. Finally, in his January 2015 Notice of Disagreement, the Veteran indicated that his back disability rendered him unable to work. Therefore, on remand, the AOJ should adjudicate his implied claim for a total disability rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters are REMANDED for the following action: 1. Obtain any unassociated VA treatment records. 2. Obtain an addendum opinion from a qualified examiner regarding the current nature of the Veteran's degenerative joint disease of the lumbar spine. If and only if the examiner determines the Veteran should be given another examination (including via telehealth if an in-person examination is not possible) one should be scheduled. 3. The examiner is asked to offer an opinion whether the Veteran's lumbar spine range of motion and any functional loss thereof to include during flareups is functionally equivalent to ankylosis. 4. After ensuring completion of the above development, adjudicate the TDIU claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.