Citation Nr: 21076414 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 15-36 460 DATE: December 23, 2021 ORDER Entitlement to a rating of 40 percent, but no higher, for a service-connected right lower extremity (RLE) disability is granted from September 29, 2009. REMANDED Entitlement to service connection for a sinus disability, to include sinusitis and rhinitis, is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's RLE disability has more closely approximated moderately-severe incomplete paralysis. CONCLUSION OF LAW The criteria for a rating of 40 percent, but no higher, for a RLE disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1970 to September 1974. In October 2020, the Board denied entitlement to service connection for a sinus disability, as well as entitlement to a rating in excess of 20 percent for a RLE disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of VA (Parties), vacating the October 2020 Board decision, and remanding the matter to the Board for compliance with the JMR instructions. Entitlement to a non-initial rating of 40 percent, but no higher, for a service-connected RLE disability is granted from September 29, 2009. The Veteran asserts that his RLE disability warrants an increased evaluation. See August 2012 Notice of Disagreement; September 2010 Statement in Support of Claim. The Board agrees. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the 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 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. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's service-connected RLE disability is assigned a 20 percent rating from September 29, 2010, under DC 8520, 38 C.F.R. § 4.124A, for diseases of the peripheral nerves. Under DC 8520, an 80 percent rating is warranted for complete paralysis characterized by foot dangles and drops, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost. Successive lesser ratings are warranted for incomplete paralysis that is severe, with marked muscular atrophy (60 percent); moderately severe (40 percent); moderate (20 percent); and mild (10 percent). As this case involves a non-initial rating, the period on appeal, including the one-year lookback, is from September 29, 2009. At the outset, the Board notes that an 80 percent or 60 percent rating is not warranted as the evidence does not demonstrate complete paralysis (80) or muscular atrophy (60). See 38 C.F.R. § 4.124A, DC 8520; January 2020 C&P nerves examination (incomplete paralysis and no atrophy); February 2014 C&P examination (no atrophy); February 2012 C&P examination (no atrophy); September 2011 C&P examination (incomplete paralysis and negative for atrophy); August 2010 VA physical therapy consult note (negative for muscle atrophy). Both complete paralysis and muscular atrophy are objective findings that must be made by medical professionals, and as the evidence does not demonstrate such findings, neither an 80 nor 60 percent rating is warranted. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding the Board is precluded from making its own medical determinations). The next lower rating of 40 percent, however, only requires demonstration of incomplete paralysis that is moderately severe. Although the C&P examination form for peripheral nerves prompt the examiner to describe the severity of incomplete paralysis, there is a subjective element to distinguishing between the levels of severity, which allows for the Board to consider the Veteran's functional impairment in reaching a rating that adequately approximates his level of disability. As will be discussed below, the Board finds that the evidence supports a 40 percent rating throughout the appeal period. In this regard, the Board finds that the evidence demonstrates RLE functional impairment that more closely approximates a moderately severe level (40) than a moderate level (20). Specifically, the evidence demonstrates consistent impairment in the form of pain, numbness, weakness, falling, tripping, and regular use of assistive devices. Muscular atrophy, which is required for a 60 percent rating, is loss of muscle that can be caused by underuse. The evidence does not demonstrate atrophy, meaning that a 60 percent rating cannot be assigned. A September 2009 VA internal medicine note indicates the Veteran reported frequent falling and increased episodes of numbness in the right leg. An October 2009 VA orthopedic surgery consult indicates the Veteran experiences frequent falls due to RLE numbness and weakness and that he requires use of an assistive device for balance. A January 2010 VA orthopedic clinic resident note indicates the Veteran was being seen for frequent falls due to numbness in his right foot. The Veteran also reported a history of his right foot falling asleep while in a seated position since 1985, which continues to occur all the time. The clinician noted the Veteran walked with a very slow antalgic gait and "appears to be in a lot of pain with any movements." Physical examination revealed weakness in the RLE. A March 2010 VA examination indicates the Veteran reported right foot numbness and burning sensation. The examiner notes that the Veteran was given a walker in 2009 and that he reported falling 20 times in the last 9 months. An April 2010 VA neurology consult indicates the Veteran reported RLE burning pain, weakness, right foot falling asleep, and falling to the ground for the past 2 years. He was prescribed a walker for ambulation due to these symptoms. A May 2010 VA physical medicine rehabilitation conference note indicates the Veteran's right foot falls asleep and uses a four-wheeled walker for ambulation. The note also indicates the Veteran reported RLE numbness, falling, shooting pain, constant weakness, and decreased sensation of the RLE demonstrated by needle sensory testing. A June 2010 VA orthopedic surgery note indicates the Veteran reported lower extremity pain and weakness. The note also indicates the Veteran reported episodes of his right foot falling asleep and causing him to fall to the ground. This occurs when he sits for longer than half an hour and sometimes while walking. A November 2010 VA orthopedics consult note indicates the Veteran's RLE radiculopathy was productive of shooting pain and weakness for the past couple of years, and that the pain can be so severe that it causes him to fall. A September 2011 C&P examination addressing the Veteran's spine describes radiculopathy of constant pain as mild, intermittent pain as mild, paresthesias and/or dysesthesias as mild, and numbness as mild. The examiner noted regular use of brace, cane, and walker. The September 2011 C&P examination addressing peripheral nerves indicates the Veteran's RLE disability was productive of radiculopathy, with moderate constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The examiner noted that the sciatic nerve had moderate incomplete paralysis. As instructed by the July 2021 JMR, the Board highlights that the examiner noted the Veteran's abnormal gait was characterized by stiffness and that he tended to lean forward with a flattened back. The examiner additionally noted that the Veteran required regular use of a brace, cane, and walker, and that his RLE disability was productive of pain, weakness, and frequent tripping incidents. The examiner also noted functional impairment of decreased mobility and strength, and difficulty with lifting, carrying, and reaching, and lack of stamina. A February 2012 C&P examination addressing the Veteran's back disability indicates radiating pain into the right leg and use of a cane and four-wheeled walker. An October 2012 VA treatment record notes the Veteran has a history of falling and requires use of a crutch, cane, and walker. A March 2013 VA physical therapy progress note indicates the Veteran reported two instances of falling due to his right foot falling asleep. A July 2013 VA orthopedic consult indicates right foot numbness and a July 2013 VA medicine outpatient note indicates pain and numbness in the right leg. A November 2013 VA rehabilitation/physical therapy note indicates the Veteran reported "hot burning pain" in his right thigh after sitting for more than 30 minutes or walking. A February 2014 C&P examination indicates the Veteran reported his right foot falling asleep for the past 10 years that happens 3-4 times per day. The examiner also notes that the Veteran required regular use of a walker for right foot numbness. An April 2015 VA primary care physician note indicates the Veteran requires use of a walker because his right foot falls asleep. An August 2015 VA treatment record notes that the Veteran reported his feet falling asleep. A November 2015 VA EMG/NCV note indicates the Veteran reporting falling due to his RLE giving out and that he needs a walker and cane. A January 2020 C&P examination addressing the spine indicates the Veteran has RLE radiculopathy of moderate constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The examiner noted regular use of a walker. A January 2020 C&P examination addressing peripheral nerves notes that the Veteran's RLE disability is productive of "constant mild to moderate numbness and pins and needles sensation radiating from his lower back into both buttocks down both legs to his toes." The Veteran reported being unable to walk far and, as highlighted in the JMR, lack of sensation in his legs in cold weather. The examiner described the RLE disability in terms of moderate constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The examiner noted the Veteran's sciatic nerve had moderate incomplete paralysis and requires regular use of a walker. The Veteran's nerves condition is productive of shooting pain into the RLE that interferes with walking, bending, and lifting. In sum, the evidence discussed above demonstrates that the Veteran's RLE disability has been productive of pain, numbness, weakness, falling, tripping, and regular use of assistive devices throughout the appeal period. The Board finds that the level of functional impairment caused by these RLE symptoms more closely approximate the 40 percent level of moderately severe than the 20 percent level of simply moderate. Accordingly, entitlement to a non-initial rating of 40 percent, but no higher, for a service-connected RLE disability is granted from September 29, 2009. REASONS FOR REMAND Entitlement to service connection for a sinus disability, to include sinusitis and rhinitis, is remanded. The Veteran asserts that his sinusitis began during service. See September 2010 Statement in Support of Claim. In the July 2021 JMR, the Parties agreed that the Board erred by failing to support its decision with an adequate statement of reasons and bases. JMR at 1. Specifically, regarding a claimed sinus disability, the Parties agreed that the Board failed to comment on whether the Veteran's uvulopalatopharyngoplasty (UPPP) and removal of tonsils could be the product of a diagnosis of chronic sinusitis. Id. at 2. The Board observes that the January 2020 DBQ refers to a surgery that occurred around 2017 "to clean out his sinus including UPPP and removal of his tonsils and adenoids." The Board finds that commenting on whether this surgery could be the product of chronic sinusitis is a medical question that requires a medical opinion. Accordingly, remand is warranted to obtain an addendum opinion. In addition, a medical opinion should be obtained regarding whether the Veteran's diagnosed rhinitis is related to service. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records. 3. The AOJ should specifically attempt to obtain records of the Veteran's UPPP surgery and removal of tonsils. 4. Then, obtain a medical addendum opinion to address the Veteran's UPPP and removal of tonsils. The entire claims file must be made available to and reviewed by the examiner, to include this remand, the July 2021 JMR, and the January 2020 DBQ. After reviewing the claims file, the examiner is asked to address the following: (a.) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's UPPP and removal of his tonsils "could be the product of a diagnosis of chronic sinusitis or 'signs and or symptoms to support [such] a diagnosis.'" JMR at 2. The examiner is also asked to review the Veteran's long history of complaints of and treatment for sinus related conditions and reconcile this long history with the January 2020 DBQ finding that the Veteran does not have a chronic condition. (b.) If a chronic sinus disorder is identified, is it at least as likely as not (50 percent probability or greater) that the chronic sinus disorder had its onset during, or is otherwise related to, the Veteran's military service. (c.) Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's allergic rhinitis was caused by an event in service or is otherwise related to service. A complete rationale must be given for all opinions and conclusions. If unable to opine without resorting to speculation, please provide a basis for reaching this conclusion. 5. Thereafter, readjudicate the issue on appeal. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.