Citation Nr: 21074779 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 14-10 001 DATE: December 16, 2021 ORDER Entitlement to a disability evaluation of 20 percent for left lower extremity radiculopathy, effective August 13, 2021, is granted. Entitlement to a disability evaluation of 20 percent for right lower extremity radiculopathy, effective August 13, 2021, is granted. REMANDED Entitlement to an initial disability evaluation higher than 10 percent prior to February 15, 2017, and higher than 20 percent since February 15, 2017, for lumbar spine strain is remanded. Entitlement to a separate compensable evaluation for left lower extremity radiculopathy prior to August 13, 2021 is remanded. Entitlement to a separate compensable evaluation for right lower extremity radiculopathy prior to August 13, 2021 is remanded. Entitlement to a disability evaluation higher than 20 percent for left lower extremity radiculopathy since August 13, 2021 is remanded. Entitlement to a disability evaluation higher than 20 percent for right lower extremity radiculopathy since August 13, 2021 is remanded. REFERRED In May 2021, the Veteran submitted March 2021 private nexus opinions regarding disabilities of the hip, thigh, ankle, and knee. The Veteran is informed that new claims must be submitted on the appropriate form. These issues are referred to the Agency of Original Jurisdiction (AOJ), in order to provide the Veteran with the appropriate form for submitting new claims. FINDING OF FACT Since August 13, 2021, the evidence shows that the Veteran's left and right lower extremity radiculopathy is manifested by moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Effective August 13, 2021, the criteria for entitlement to a 20 percent disability evaluation for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code (DC) 8520. 2. Effective August 13, 2021, the criteria for entitlement to a 20 percent disability evaluation for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDING AND CONCLUSIONS This matter again comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board previously remanded this matter in September 2018. The Board then denied the Veteran's appeal in a January 2020 decision, after which the Veteran timely appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). By way of a February 2021 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR) and returned this matter to the Board. The Board remanded this matter in June 2021. In a September 2021 rating decision, the RO granted entitlement to separate 10 percent evaluations for left lower extremity radiculopathy and right lower extremity radiculopathy, as secondary to the Veteran's service-connected lumbar spine strain, effective August 13, 2021. As these separate 10 percent evaluations were granted as part and parcel of the issue of entitlement to increased ratings for the Veteran's lumbar spine strain, the Board finds that this matter is also on appeal. Right and Left Lower Extremity Radiculopathy since August 13, 2021 Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's bilateral lower extremity radiculopathy is rated pursuant to DC 8520. Under this DC, a 10 percent evaluation is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent evaluation is assigned for moderate incomplete paralysis. 38 C.F.R. § 4.124a, DC 8520. 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," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured 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. 38 C.F.R. § 4.124a, Note prefacing DCs 8510 through 8730. During her August 2021 examination, the Veteran exhibited moderate symptoms of intermittent pain (usually dull) and paresthesias and/or dysesthesias of the bilateral lower extremities. Her straight leg raising test was positive bilaterally and she noted that walking her dog around the block was tedious and that her feet would "feel ice cold and very uncomfortable. After examining the Veteran, the examiner concluded that the Veteran's service-connected lumbar spine strain caused her bilateral radiculopathy and affected the sciatic nerves in each leg. Resolving the benefit of the doubt in the Veteran's favor, the Board finds that 20 percent evaluations are warranted for radiculopathy in both the right and left legs. The criteria have been met to warrant a 20 percent evaluation effective August 13, 2021, the date of examination in which the Veteran's condition exhibited moderate incomplete paralysis of the sciatic nerve, including moderate symptoms of intermittent pain and moderate paresthesias/dysesthesias. As will be discussed below, however, because there are possible outstanding private medical records, the question of whether ratings higher than 20 percent are warranted since August 13, 2021 is being remanded. REASONS FOR REMAND Lumbar Spine Strain Regarding the Veteran's claim for entitlement to increased disability evaluations for her lumbar spine strain, the Board notes that, after issuance of the June 2021 remand, the RO requested that the Veteran identify any and all additional medical records related to her lumbar spine disability. However, the RO was on notice that the Veteran received treatment for her lumbar spine strain at Walter Reed National Military Medical Center, as records from that facility were affiliated with the claims file as early as 2014. See Records from Walter Reed National Military Medical Center received in February 2014 and March 2016. As such, the RO was on notice that the Veteran received Walter Reed National Military Medical Center and should have made reasonable efforts to obtain those updated records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board notes that the Veteran underwent a new examination in August 2021. However, the examination does not indicate whether testing on both weight-bearing and nonweight-bearing had been performed. See Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the Board requests on remand that the August 2021 examiner clarify as to whether weight-bearing and/or nonweight-bearing testing was performed and whether this would have resulted in different range of motion findings. The Board also requests a clarifying retrospective opinion regarding the severity of the Veteran's disability throughout the period on appeal. See Chotta v. Peake, 22 Vet. App. 80 (2008). Right and Left Lower Extremity Radiculopathy Concerning the effective date for the increased 20 percent evaluations for the Veteran's bilateral lower extremity radiculopathy, the Board notes that, in May 2015, the Veteran was diagnosed as having sciatica. See May 2015 Walter Reed National Military Medical Center Records. The Veteran also reported pain radiating into her right buttock during the February 2017 examination. See February 2017 VA Thoracolumbar Spine C&P Examination. The Board also acknowledges that any outstanding medical records, if obtained, could indicate earlier instances of bilateral lower extremity radiculopathy. As such, the Board requests on remand, after receipt of outstanding medical records, an opinion as to whether the Veteran exhibited bilateral lower extremity radiculopathy prior to the grant of separate disability evaluations effective August 13, 2021. Chotta, 22 Vet. App. at 85. The matters are REMANDED for the following action: 1. The RO should request that the Veteran identify any and all outstanding and/or updated VA and/or private medical records regarding her service-connected lumbar spine strain and bilateral lower extremity radiculopathy. Appropriate efforts must be made to obtain these records, including, but not limited to, those from Walter Reed National Military Medical Center if she has adequately identified them and authorized their release (with respect to any private medical records). She should also be invited to submit these records herself. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and her representative should be so notified in writing. 2. Forward the claims file to the August 2021 examiner for an addendum opinion as to the nature and severity of the Veteran's lumbar spine strain and lower extremity radiculopathy throughout the period on appeal. If the August 2021 examiner is not available, forward the claims file to another clinician with the appropriate expertise. Based on a review of the medical evidence, including the Veteran's lay statements, VA examinations, and all treatment records, the examiner should discuss: a) Was range of motion testing at the August 2021 examination performed with active motion, passive motion, and with weight bearing? If not, would such testing have resulted in any different outcomes for the Veteran's range of motion? b) At any point from December 1, 2011 to the present, does the record reflects that the Veteran's lumbar spine strain would have caused more restrictions in range of motion during active motion, passive motion, weight-bearing, and with flare-ups? c) Please specifically discuss the Veteran's reports of having flare ups at the February 2017 VA examination, and attempt to estimate the amount of range of motion lost during flare ups based on her lay statements and the other medical evidence of record. Please also discuss whether there is any evidence prior to February 2017 that the Veteran's functional impairment due to lumbar strain had worsened. d) Did the Veteran exhibit left or right lower extremity radiculopathy prior to the August 2021 examination? If the record reflects that the Veteran showed radiculopathy in either or both legs, the provide the approximate dates when the Veteran's radiculopathy was first exhibited, and provide an opinion as to the severity of her radiculopathy from those dates to the present. If the requested opinions cannot be rendered without resorting to speculation, the examiner must explain why providing such estimates is not possible. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.