Citation Nr: 21073896 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-45 578 DATE: December 13, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for sciatica of the left leg is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and major depressive disorder, is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right leg disability, including a disability of the right knee and right hip is remanded. FINDING OF FACT The Veteran's sciatica of the left leg is not manifested by moderately severe incomplete paralysis. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for sciatica of the left leg are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1976 to March 1977. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision dated in February 2014 of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing in February 2020. A copy of the transcript has been associated with the record. This appeal was most recently before the Board in April 2020, at which time it was remanded for additional development. The case has since returned to the Board. With respect to claim for an increased rating for sciatica, the Board finds that the AOJ substantially complied with remand directives and the case is ready for adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, the remaining claims must again be remanded. The Board sincerely apologizes for any additional delay in rendering a decision for these claims on appeal; however, to ensure the Veteran is afforded every opportunity to substantiate his claims, a remand is required. 1. Entitlement to an initial rating in excess of 20 percent for sciatica of the left leg Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two or more evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, is to be avoided. 38 C.F.R. § 4.14. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. A claimant is entitled to the benefit-of-the-doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's right leg neurological condition is rated under Diagnostic Code (DC) 8520 for paralysis of the sciatic nerve. Under DC 8520, a 10 percent evaluation is assigned for mild incomplete paralysis of the sciatic nerve, a 20 percent evaluation is assigned for moderate incomplete paralysis, a 40 percent evaluation is assigned for moderately severe incomplete paralysis, and a 60 percent evaluation is assigned for severe incomplete paralysis with marked muscle atrophy. The terms "mild," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Turning to the evidence, the Veteran was afforded a VA examination of the back, which included his sciatica, in August 2013. The Veteran reported that he had constant pain radiating down the outer aspect of his left leg to the ankle and toes, but did not include the big toe. Walking two blocks, standing 20 minutes, or climbing 10 steps worsened the pain. On physical examination, the Veteran's knee extension strength was normal, ankle plantar flexion strength was normal, and great toe extension was normal, but ankle dorsiflexion was decreased. There was no muscle atrophy. Left knee reflexes were normal, but ankle reflexes were decreased. The Veteran had decreased sensation to light touch at the left ankle and foot. Straight leg testing was negative. At an appointment in October 2014, the Veteran reported numbness in the left lower extremity. He was able to walk with a cane. The Veteran had numbness and pain in the left leg in May 2016. At appointments in August 2016 and October 2017, review of the Veteran's symptoms was negative for numbness, weakness, and gait problems. The Veteran reported experiencing numbness "at times" in July 2019. In August 2019, September 2019, and October 2019, there was no numbness or tingling noted. The Veteran testified at a Board hearing in February 2020. He testified that he ambulated with a walker, was taking prescription medication for nerve symptoms, and experienced pain and weakness in the left leg. The Veteran reported difficulties walking long distances. The Veteran was afforded another VA examination in July 2021. He was diagnosed with sciatica of the bilateral lower extremities. The Veteran reported numbness, tingling, and constant pain, which the examiner noted were of moderate severity. On physical examination, the Veteran's muscle strength was normal in the left lower extremity. There was no muscle atrophy or trophic changes. The Veteran had decreased reflexes in the knee and ankle, and decreased sensation for light touch in the toes, but not the lower leg and ankle. The Veteran had an antalgic gait with constant use of a cane and/or walker. The Veteran was unable to walk more than half a block at a time or stand for long periods of time. As mentioned above, a 20 percent rating is warranted for "moderate" incomplete paralysis and a 40 percent rating is warranted for "moderately severe" incomplete paralysis. When the symptoms are wholly sensory, the rating assigned should be 10 percent, or at most, 20 percent. The Board notes that the Veteran does not have wholly sensory symptoms, as his sciatica impacted his reflexes and gait; however, there is no evidence of muscle atrophy or trophic changes. The Board concludes that the Veteran's sciatica of the left lower extremity is not moderately severe at any point in the appeal period. The Veteran experienced decreased sensation at the ankle in the August 2013 VA examination, but not in the July 2021 VA examination. He also had decreased left ankle dorsiflexion in August 2013, but normal muscle strength in July 2021. Additionally, the Veteran reported that he experienced numbness "at times," in July 2019; and no numbness or tingling was noted during at least five appointments between 2016 and 2019, meaning the Veteran's symptoms are intermittent and wax and wane. Given the intermittent nature of the Veteran's symptoms, the Board finds that the evidence does not support a finding that the average impairment of the Veteran's sciatica was "moderately severe." See 38 C.F.R. § 4.1 ("the percentage ratings represent the average impairment[.]). According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension," "avoiding extremes," and "limited in scope or effect." See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree," or "very painful or harmful" or "very bad, serious, or harsh." See www.merriam-webster.com/dictionary/severe. Therefore, in this case, the Board finds that the Veteran's symptoms more closely approximate the rating for "moderate" than "moderately severe." As "moderate" means "limited in scope or effect," and the Veteran's symptoms are intermittent, they cannot be said to be moderately severe. In sum, a rating in excess of 20 percent is denied for the appeal period, as the evidence is against a finding of "moderately severe" incomplete paralysis. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 54-55. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, including PTSD and major depressive disorder is remanded. In June April 2020, the Board noted that the Veteran's military personnel records appeared incomplete, particularly records concerning a court-martial. In January 2021, the AOJ associated additional records with the claims file. They include a report to the Recruit Processing Section of the Chicago Police Department that the Veteran received non-judicial punishment and forfeited pay in March 1977. However, the report indicates that the offense was unknown. The actual records from the court-martial, including charging documents, any investigation, and the judgment, still do not appear in the Veteran's personnel file. The AOJ must continue to search for the missing records until it is reasonably certain that the records do not exist or that further efforts would be futile. If the records are determined to be unavailable, the AOJ should issue a formal memorandum of unavailability and notify the Veteran that the records are unavailable. As such, the Board finds that further remand is necessary. The Board acknowledges that there are positive nexus opinions from the August 2021 VA examiner regarding the Veteran's depressive disorder and PTSD. However, the Board may not grant the PTSD claim because there is no evidence in the claims file to support that the claimed stressor occurred, as required by 38 C.F.R. § 3.304(f). Additionally, the Board may not grant the depressive disorder claim at this time because the August 2021 VA examiner made some factually inaccurate statements in the rationale, and did not address the Veteran's personality disorder, as diagnosed in the outpatient records. First, the examiner explained that the Veteran's depression started with triggers of trauma "(...in STR's [service treatment records] as indicated in evidence review)." However, the Veteran's STRs do not mention any traumatic experiences or psychiatric symptoms, nor did the examiner summarize any such records in the evidence review section of the report. Second, the examiner bases the opinion on trauma the Veteran experienced, and noted he "is a combat Veteran." However, the Veteran's records do not indicate he is. Finally, the VA examiner indicated that the personality disorder diagnoses could not be addressed because doing so would require more than one assessment, and recommended additional testing was recommended. However, the AOJ did not obtain another VA examination. As the VA examinations of record are inadequate, another remand is required. 2. Entitlement to service connection for a left ankle disability is remanded. The Veteran was afforded a VA examination in July 2021. The VA examiner diagnosed the Veteran with a left ankle ligament sprain, and provided a negative nexus opinion. The examiner wrote that it less likely than not manifested within a year of service, there was no documentation of ankle pain after January 1977, the X-ray was unremarkable, and there was no evidence of arthritis. The rationale provided is inadequate for several reasons. First, the examiner did not address the February 2020 remand directive requiring an opinion directly addressing the Veteran's testimony that his left ankle pain began in service and has persisted since. Second, the examiner's opinion is based largely on the absence of documentation and does not use medical principles to explain the rationale. Third, the VA examiner used the standard for presumptive service connection for arthritis (whether it manifested within a year of separation), and did not otherwise explain whether the disability was etiologically related to an in-service event. For these reasons, a remand is required. 3. Entitlement to service connection for a right leg disability, including a disability of the right knee and right hip is remanded. The Veteran was afforded a VA examination of the right hip and right knee in July 2021. The VA examiner diagnosed the Veteran with arthritis of the hip and knee, and provided two negative nexus opinions. Regarding the knee, the examiner explained that the Veteran experienced an in-service laceration to his right ankle, which had no impact on his knees, and that there were no complaints of knee pain until 30 years after service, meaning there was no chronicity and therefore no nexus. The rationale provided is inadequate for several reasons. First, the examiner did not directly address the Veteran's contentions that his knee pain began in service and has persisted since, or that it is related to rucking and running on active duty. Second, the examiner's opinion is based largely on the absence of documentation and does not use medical principles to explain the rationale. Third, the examiner does not address the annotations of knee pain in the Veteran's STRs. Finally, the Board notes that chronicity is only one way that service connection for arthritis may be established, and the examiner does not otherwise explain if the arthritis is etiologically related to service. For these reasons, a remand is required. The Board similarly finds the opinion regarding the Veteran's right hip inadequate. The examiner explained that arthritis develops over time from chronic wear and tear, and there are no complaints of hip pain until 30 years after service, meaning there is no chronicity and therefore, no nexus. First, the examiner did not directly address the Veteran's contention that he had been unable to evenly distribute his weight since service because of in-service injuries, which led to an altered gait and ultimately caused his hip problems. Second, the Board notes that chronicity is only one way that service connection for arthritis may be established, and the examiner does not otherwise explain if the arthritis is etiologically related to service. Therefore, on remand, the AOJ must obtain adequate opinions for the hip and knee claims. The matters are REMANDED for the following action: 1. Request all of the Veteran's military personnel records, specifically including those from a court-martial, from all potential records repositories. (a.) If any service department records cannot be located, specifically document the attempts that were made to locate them. Then: (a) notify the Veteran of the specific records that are unable to be obtained; (b) explain the efforts VA has made to obtain those records; and (c) describe any further action VA will take with respect to the claim. The Veteran must then be given an opportunity to respond. If it is determined that further attempts to obtain the records would be futile, a formal finding must be documented in the claims file. 2. Obtain a supplemental opinion from an appropriate VA clinician to determine the etiology of the Veteran's acquired psychiatric disorder, including PTSD, major depressive disorder, and personality disorder. If the examiner determines that he or she cannot respond to the Board's inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination. The examiner should address the following: (a.) The examiner should note that generally personality disorders are not diseases or injuries within the meaning of the applicable legislation (38 C.F.R. §§ 3.303 (c), 4.9; 38 U.S.C. § 1110); and in the absence of superimposed disease or injury, service connection may not be allowed for personality disorders. The examiner should specifically indicate whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran incurred any superimposed disease or injury on a personality disorder during active duty service. (b.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's depressive disorder is etiologically related to, incurred in, or caused by the Veteran's active service, including any personal assaults in service or hazing or ostracism. (c.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran's PTSD is etiologically related to service. The examiner should note that service connection may be granted for a disability existing on the date of application or at any time during the appellate period even if resolved at the time of adjudication and note that PTSD was diagnosed by Dr. J. D. in an August 2015 letter, and the July 2021 VA examiner, and is documented in the Veteran's outpatient records. (d.) If the examiner finds that upon examination the Veteran meets the criteria for a diagnosis of PTSD, then indicate: (1) whether the identified stressor is adequate to support a diagnosis of PTSD under the appropriate criteria; and (2) whether it is at least as likely as not that the Veteran's current symptoms are related to the claimed stressor. In this regard, the examiner should note the various lay evidence regarding the claimed stressors in this case, statements by the Veteran and Dr. J. D. in August 2015, and a lay statement by P. A., friend, in August 2015. (e.) If the examiner finds that the Veteran does not meet the relevant criteria to establish a diagnosis of PTSD, the examiner must: (1) indicate what criteria/symptoms for such a diagnosis are lacking; and (2) expressly address the diagnoses of PTSD contained in the record, and explain whether the PTSD has since resolved, or whether the examiner disagrees with those diagnoses, including VAMC records and Dr. J. D.'s letter. 3. Obtain a supplemental opinion from an appropriate VA clinician to determine the etiology of the Veteran's left ankle strain and sprain. If the examiner determines that he or she cannot respond to the Board's inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination. The examiner should address the following. (a.) The examiner must opine as to whether it is at least as likely as not (50 percent likelihood or greater) that the Veteran's left ankle sprain or strain is related to an in-service injury, event, or disease. (b.) The examiner must specifically address the contention that the Veteran's left ankle pain began in service and has persisted since. 4. Obtain a supplemental opinion from an appropriate VA clinician to determine the etiology of the Veteran's right knee and right hip arthritis. If the examiner determines that he or she cannot respond to the Board's inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an examination. The examiner should address the following: (a.) The examiner must opine as to whether it is at least as likely as not (50 percent likelihood or greater) that the Veteran's right knee disability is related to an in-service injury, event, or disease, including the Veteran's right leg injury in service, and running. (b.) In addressing the above inquiry, the examiner must address the following: 1) the annotations of knee pain in the STRs in March 1976, October 1976, and November 1976; 2) the Veteran's contentions that his knee disability is related to rucking, marching, and running in service, including running on uneven terrain in the Philippines; and 3) the Veteran's report that his knee pain had its onset in service and has persisted since. (c.) The examiner must opine as to whether it is at least as likely as not (50 percent likelihood or greater) that the Veteran's right hip disability is related to an in-service injury, event, or disease, including the Veteran's right leg injury in service, and running. (d.) In addressing the above inquiry, the examiner must specifically address the contention that the Veteran had been unable to evenly distribute his weight since service because of in-service injuries, including an ankle and a leg injury, which led to an altered gait and ultimately caused his hip problems. A complete explanation for all opinions expressed must be provided. A clearly stated rationale must not be based solely on lack of documentation or records. The reasons for any opinion must include a discussion of the relevant evidence. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.