Citation Nr: 21075600 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-09 027 DATE: December 21, 2021 ORDER Service connection for left lower extremity radiculopathy is granted. A disability rating in excess of 10 percent for neuropathy of the left peroneal nerve is denied prior to August 16, 2019. A 20 percent disability rating for neuropathy of the left peroneal nerve is granted from August 16, 2019. REMANDED Entitlement to service connection for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran's left lower extremity radiculopathy was caused and/or aggravated by his service-connected left knee meniscectomy and chondroplasty. 2. Prior to August 16, 2019, the Veteran's neuropathy of the left peroneal nerve was no more than mild in severity. 3. From August 16, 2019, the Veteran's neuropathy of the left peroneal nerve has been no more than moderate in severity. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 101, 1101, 1110, 1131, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. 2. The criteria for a disability rating in excess of 10 percent for neuropathy of the left peroneal nerve have not been met prior to August 16, 2019. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8521. 3. Resolving reasonable doubt in favor of the Veteran, the criteria for a 20 percent disability rating for neuropathy of the left peroneal nerve have been met from August 16, 2019. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service from October 1979 to May 1995. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at an August 2019 video hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. In May 2021, the Board remanded this case for further development. With the exception of the issue of entitlement to service connection for right lower extremity radiculopathy, which is addressed in the remand portion of this decision, the development requested has been completed and the case is now appropriate for appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). 1. Service connection for left lower extremity radiculopathy is granted. The Veteran has contended that his left lower extremity radiculopathy is related to his service-connected lumbar strain, or to his non-service-connected degenerative arthritis of the lumbar spine, which he also believes is related to active service. Alternatively, he has stated that he has left leg symptoms related to his service-connected residuals of left knee meniscectomy and chondroplasty with degenerative changes. As noted in the Board's May 2021 remand, a diagnosis of left lower extremity radiculopathy that is separate and distinct from his service-connected neuropathy affecting the left peroneal nerve has been demonstrated by the evidence (see, e.g., NCV study dated August 15, 2008; August 2014 VA back examination report; July 2016 VA back examination report). Pursuant to the Board's remand, in June 2021, a VA opinion was obtained regarding whether the left lower extremity radiculopathy was related to either a service-connected disability or directly to active service. In the June 2021 report, the VA examiner stated that the claimed left lower extremity radiculopathy was related to the in-service left knee meniscectomy and chondroplasty, reasoning that the Veteran had no issues related to the claimed left lower extremity radiculopathy prior to military service, and that there was evidence of chronicity of symptoms since service and a nexus was established. There are no contrary opinions of record. Resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for left lower extremity radiculopathy is warranted. Disability Ratings Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Staged ratings are appropriate for an initial or increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. A disability rating in excess of 10 percent for neuropathy of the left peroneal nerve is denied prior to August 16, 2019. 3. A 20 percent disability rating for neuropathy of the left peroneal nerve is granted from August 16, 2019. The Veteran is in receipt of a 10 percent rating for his neuropathy of the left peroneal nerve throughout the increased rating period on appeal. The Veteran contends that he is entitled to a higher disability rating. For the reasons discussed below, the Board finds that the weight of the evidence is against a finding that the Veteran's neuropathy involving the left peroneal nerve manifested symptoms that were more than mild in severity prior to August 16, 2019, and that, therefore, a rating in excess of 10 percent prior to August 16, 2019 is not warranted. However, from August 16, 2019, resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise as to whether the left peroneal nerve disability manifested moderate symptoms, and that, therefore, a 20 percent disability rating is warranted from that date. Paralysis of the external popliteal (common peroneal) nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8521 (neuritis and neuralgia of that group are evaluated under DCs 8621 and 8721). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis, where there is foot drop and slight droop of the first phalanges of all toes, inability to dorsiflex the foot, extension (dorsal flexion) of the foot is lost, abduction of the foot is lost, adduction is weakened, and anesthesia covers the entire dorsum of the foot and toes, is rated as 40 percent disabling. 38 C.F.R. § 4.124a. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be for moderate, or with sciatic nerve involvement, for moderately severe incomplete paralysis. See 38 C.F.R. § 4.123. Reviewing the most relevant evidence of record, at an August 2014 VA back examination, sensory examination was normal throughout the left lower extremity. Straight leg raise test was negative. However, the Veteran reported moderate constant pain, intermittent pain, paresthesias, and numbness in the left lower extremity. The examiner indicated that the left L4/L5/S1/S2/S3 nerve roots were involved, and that the Veteran had moderate left lower extremity radiculopathy. At a separate VA peripheral nerves examination in August 2014, the examiner indicated that the Veteran did not have any symptoms attributable to any peripheral nerve conditions. Sensory examination was again noted to be normal, there were no trophic changes, and gait was normal. The examiner indicated that all nerves were unaffected, including the external popliteal (common peroneal) and musculocutaneous (superficial peroneal) nerves, and that the Veteran's peripheral nerve condition would not impact his ability to work. In a September 2014 addendum report to the peripheral nerves examination, the examiner clarified that the Veteran did have a peripheral nerve condition related to nerve root compression based on his symptomatology of his left leg. This was in the "sciatic" distribution and represented nerve root compression rather than a true peripheral neuropathy; it was a radiculopathy in the L4-S1 nerve root distribution. This radiculopathy represented a separate diagnosis that was unrelated to his service-connected common peroneal neuropathy, and the two conditions were unrelated. Finally, based on the examination it appeared as though there was no common peroneal neuropathy per the examination findings; the Veteran demonstrated full strength, sensation, and reflexes, and appeared to have no neuropathy attributed to his left leg; therefore, it appeared as though he only had the left radiculopathy. At a July 2016 VA peripheral nerves examination, the Veteran reported moderate intermittent pain and mild paresthesias and numbness in the left lower extremity. Reflexes were decreased in the left lower extremity. Sensory examination was decreased in the left lower leg/ankle and foot/toes. There were no trophic changes. Gait was normal. The examiner indicated that all lower extremity nerves were normal. An EMG study conducted in July 2008 revealed acute radiculitis of the left lower extremity at L5-S1 and mild compression neuropathy of the left peroneal nerve at the fibular head. The examiner stated the nerve condition did not impact the Veteran's ability to work. The diagnosis was left peroneal compression neuropathy and left radiculopathy L5-S1. At a February 2017 VA peripheral nerves examination, the examiner diagnosed peripheral neuropathy of the left lower extremity, peroneal nerve. The Veteran reported left lateral leg/foot decreased sensation after left knee surgery in 1984 and again in 2012 after knee surgery. Current complaints were reported as from the first surgery. He had continued decreased sensation that waxed and waned in the left lateral leg and foot with a "tingling" sensation. He was not receiving any current treatment. The Veteran reported mild paresthesias and numbness in the left lower extremity. Reflexes were normal throughout the left lower extremity. Sensation was decreased in the left lower leg/ankle and foot/toes. There were no trophic changes. Gait was normal. The examiner indicated that the sciatic nerve was normal bilaterally. However, the Veteran had mild incomplete paralysis of the musculocutaneous (superficial peroneal) nerve on the left. The nerve condition did not impact the Veteran's ability to work, and the examiner reiterated that the left lower extremity neuropathy was mild in severity. At the August 2019 Board hearing, the Veteran testified that he could not stand for a long period of time; his left leg would go almost completely numb and he experienced tingling in his toes. When his foot went numb, he was unable to feel it to walk. He was unable to walk on uneven surfaces as he would fall. He stated his nerve condition had significantly worsened since his last VA examination in 2017. He used a cane for stability. He stated that the 2017 VA examiner coached him to hear what he wanted to hear. Pursuant to the Board's remand, the Veteran was afforded another VA peripheral nerves examination in June 2021. The examiner diagnosed neuropathy of the left peroneal nerve. The Veteran reported numbness and tingling in the left leg extending to toes. He reported mild constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness in the left lower extremity. Sensation was normal throughout the left lower extremity. There were no trophic changes. The Veteran's gait was not normal as he used a left knee brace and cane for balance for both his left knee disability and his neuropathy of the left leg. The examiner indicated that the sciatic nerve was normal bilaterally. The Veteran had moderate incomplete paralysis of the external popliteal (common peroneal) nerve on the left side. He indicated that the musculocutaneous (superficial peroneal) nerve was normal bilaterally (contrary to the findings of the 2017 VA examiner). The examiner stated that the Veteran would be unable to stand for long periods without a cane. Based on the foregoing, the Board finds that the weight of the evidence is against an award of a disability rating in excess of 10 percent for the left peroneal nerve disability prior to August 16, 2019, as, prior to that date, the disability was not more than mild in severity. Specifically, the Board notes that the symptoms reported at the August 2014 VA back and peripheral nerves examinations were attributed to the left lower extremity radiculopathy (sciatic nerve), which is a separate and distinct (and now service-connected) disability. The examiner clarified that, based on the examination findings, the peroneal nerve was not affected. While the Veteran reported pain at the July 2016 VA examination and reflexes and sensation were decreased in the left lower extremity, the examiner indicated that all nerves in the left lower extremity were normal, weighing against a finding of more than mild neuropathy. Finally, at the February 2017 VA examination, the Veteran reported mild symptoms, reflexes were normal, and the examiner stated that the neuropathy was mild in severity. However, resolving reasonable doubt in favor of the Veteran, the Board finds that a 20 percent disability rating is warranted for the neuropathy of the left peroneal nerve from August 16, 2019. At the Board hearing on this date, the Veteran testified that his symptoms had significantly worsened since his last examination in 2017, and, at that time, he was using a cane for stability when walking due to the left foot going numb, causing instability. A similar level of symptoms was observed at the subsequent June 2021 VA examination, at which the Veteran reported some moderate symptoms and the examiner assessed moderate incomplete paralysis of the external popliteal (common peroneal) nerve. The Board also finds that the weight of the evidence is against the assignment of a disability rating in excess of 20 percent for the neuropathy of the left peroneal nerve for the entire period on appeal. In addition to the reasons discussed above, the Board notes that severe neuropathy has not be reported or assessed at any time during the increased rating period on appeal, nor is there evidence of foot drop, droop of the first phalanges of all toes, inability to dorsiflex the foot, loss of extension of the proximal phalanges, loss of abduction of the foot, or weakened adduction. While the Veteran has reported that his foot goes numb, his examining physicians have found decreased, but not lost, sensation in the foot. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves. The Board notes that the 2017 VA examiner assessed involvement of the musculocutaneous (superficial peroneal) nerve as opposed to the external popliteal (common peroneal) nerve for which the Veteran has service connection. However, as the 2017 VA examiner found no involvement of the common peroneal nerve, and the 2021 VA examiner later found no involvement of the superficial peroneal nerve, the Board finds that, to the extent that there was any discrepancy as to which particular nerve was involved, the Veteran's symptoms have been adequately compensated for by the disability ratings in place, and no separate rating for the superficial peroneal nerve is warranted based on the 2017 VA examiner's findings. Therefore, except as otherwise provided herein, separate, or even higher ratings under a different Diagnostic Code are not warranted. In denying disability ratings even higher than those assigned herein, the Board has considered the Veteran's statements that his neuropathy was worse, as well as the Veteran's reports of pain and numbness. While the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, he has not been shown to be competent to render medical opinions regarding whether his symptoms meet the next higher rating criteria under VA regulations. Such competent evidence concerning the nature and extent of the Veteran's neuropathy has been provided by the medical personnel who examined him during the current appeal. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which this disability is evaluated, and such findings are of more probative value in determining the severity of the neuropathy than are general histories or general descriptions of symptoms of pain, numbness, or other limitations, such as described by this Veteran. Despite the Veteran's contention of a debilitating neuropathy, the 10 and 20 percent disability ratings for neuropathy indicate a significant impact on his functional ability. Such disability evaluations assigned by VA recognize his functional limitations, indicating very generally 10 and 20 percent reductions, respectively, in his ability to function due to his neuropathy of the left peroneal nerve. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not, except as otherwise provided herein. For these reasons, a disability rating in excess of 10 percent for neuropathy of the left peroneal nerve is denied prior to August 16, 2019. However, resolving reasonable doubt in favor of the Veteran, a 20 percent disability rating is granted from August 16, 2019. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and, hence, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for right lower extremity radiculopathy is remanded. While the Board regrets the additional delay, a remand is necessary to obtain a VA examination and opinion regarding the etiology of the Veteran's right leg symptoms. Service treatment records show that in July 1990, the Veteran reported severe back pain radiating into both upper legs. In February 1993, the Veteran reported low back pain radiating down the right leg and was diagnosed with a lumbar strain. An MRI of the lumbar spine, taken due to the right leg pain, showed bulging discs at L4 and L5, and there appeared to be slight neural impingement by the bulging disc at L4. Assessment was possible disc disease. At the April 1995 separation examination, the Veteran reported that he did not know if he had neuritis or not, although clinical evaluation of the lower extremities and neurologic evaluation were marked normal. Following separation from service, although the Veteran did not report signs or symptoms of radiculopathy in the right lower extremity at the August 2014, July 2016, and February 2017 VA examinations, VA treatment notes show a long history of right leg symptoms. For instance, in December 2012, the Veteran reported a flare-up of back pain. The clinician noted long history of degenerative disc disease and sciatica down the right leg. In 2016 and 2017, the Veteran requested and received radiofrequency ablation treatments for right-sided radicular symptoms. In July 2020, he reported numbness in his right leg down to his thigh and a "pins and needles" sensation on the inside of his right knee, and in April 2021, he reported numbness in his right leg and foot. Finally, at the June 2021 VA peripheral nerves examination, the Veteran reported mild intermittent pain, mild paresthesias, and moderate numbness in the right lower extremity. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." Id. at 1363. In other words, where pain (or numbness and other symptoms) alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Thus, in light of the VA treatment records and June 2021 VA peripheral nerves examination report showing numerous right lower extremity symptoms, the Board finds that a new VA opinion is necessary to address whether such symptoms cause functional impairment, and, if so, whether any such functional impairment of the right lower extremity is related to active service or was caused or aggravated by a service-connected disability, including the service-connected back disability and the service-connected right knee disability (as the July 2020 VA treatment notes indicate numbness around the right knee). The matters are REMANDED for the following action: Afford the Veteran an opportunity to attend a VA examination with an appropriate specialist regarding the nature and etiology of his claimed right lower extremity radiculopathy. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file, including a copy of this decision, must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. (a.) The examiner should first identify any and all current right lower extremity neurological disabilities, to include identification of the nerves involved, and a description of any functional impairment of the right lower extremity. The examiner must document any functional impairment described by the Veteran, to include commentary on the VA treatment records outlined above and the June 2021 VA examination report at which he reported right leg numbness and pain. (b.) The examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's right lower extremity neurological disability, to include any functional impairment, even if there is no underlying diagnosis, was incurred during or caused by active service? Again, the examiner must discuss and consider any functional impairment of the right lower extremity in rendering their opinion and must address the right leg neurological symptoms documented in the service treatment records in July 1990 and February 1993. (c.) Next, the examiner should offer the following opinion: Is it at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran's current right lower extremity neurological disability, to include any functional impairment, even if there is no underlying diagnosis, was caused or aggravated by a service-connected disability, to include the service-connected lumbar strain and right knee disability? The examiner is advised, in this regard, that service connection has been denied for degenerative arthritis of the lumbar spine. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Sherrard, 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.