Citation Nr: 21076658
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 17-21 949
DATE: December 27, 2021

ORDER

1. Entitlement to a compensable rating for left ankle scar is dismissed.

2. Entitlement to a compensable rating for left shoulder scar is dismissed.

3. Entitlement to a rating in excess of 10 percent for painful left shoulder scar is dismissed. 

4. Entitlement to a rating in excess of 40 percent for service-connected degenerative arthritis of the lumbar spine with IVDS (previously rated as lumbosacral spondylosis) is denied. 

5. Entitlement to a rating of 20 percent for service-connected radiculopathy, left lower extremity (sciatic nerve), prior to November 18, 2020, is granted. 

6. Entitlement to a rating in excess of 20 percent, for service-connected radiculopathy, left lower extremity (sciatic nerve), for any time period on appeal is denied.

7. Entitlement to a rating of 70 percent, but no higher, for persistent depressive disorder associated with the lumbar spine condition (previously evaluated as insomnia disorder, with other medical comorbidity) is granted prior to July 18, 2018 and from August 11, 2020.

8. Entitlement to a rating in excess of 70 percent for persistent depressive disorder associated with the lumbar spine condition (previously evaluated as insomnia disorder, with other medical comorbidity), from July 18, 2018 to August 10, 2020, is denied. 

FINDINGS OF FACT

1. In January 2021, prior to the promulgation of a decision in the appeal, the Veteran submitted a written statement requesting his appeal for a compensable rating for left ankle scar, left shoulder, and painful left shoulder scar be withdrawn. 

2. There is neither evidence of muscle atrophy nor any form of ankylosis associated with degenerative arthritis of the lumbar spine with IVDS.

3. Symptoms of the Veteran's left lower extremity (sciatic nerve) radiculopathy most closely approximated moderate incomplete paralysis both prior to November 18, 2020, and from the period thereafter.

4. Throughout the entire appeal period, the Veteran's service-connected persistent depressive disorder manifested by symptoms approximating occupational and social impairment with deficiencies in most areas.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal for the entitlement to a compensable rating for left ankle scar, left shoulder, and painful left shoulder scar have been met. 38 U.S.C. § 7105 (b)(2) (West 2014); 38 C.F.R. § 20.205. 

2. The criteria for entitlement to a disability rating in excess of 40 percent for degenerative arthritis of the lumbar spine with IVDS (previously rated as lumbosacral spondylosis), have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.71a, Diagnostic Code 5242-5243.

3. The criteria for entitlement to a disability rating of 20 percent for service-connected radiculopathy, left lower extremity (sciatic nerve), prior to November 18, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8720.

4. The criteria for entitlement to a disability rating in excess of 20 percent for service-connected radiculopathy, left lower extremity (sciatic nerve), have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8720.

5. The criteria for entitlement to a disability rating of 70 percent, but no higher, for persistent depressive disorder associated with the lumbar spine condition (previously evaluated as insomnia disorder, with other medical comorbidity) were met prior to July 18, 2018 and from August 11, 2020. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 9433.

6. The criteria for entitlement to a disability rating in excess of 70 percent for persistent depressive disorder associated with the lumbar spine condition (previously evaluated as insomnia disorder, with other medical comorbidity) from July 18, 2018 to August 10, 2020, were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 9433.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1973 to March 1977.

These matters come before the Board of Veterans' Appeals (Board) from February 2015 and March 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran opted out from a Board hearing, as indicated in his substantive appeal. 

In pertinent part, in 2019, the Board remanded a claim for a total disability rating based on individual unemployability (TDIU).  In a September 2020 rating decision, the RO granted TDIU with a 2018 effective date.  However, an October 2021 rating decision amended the effective date to November 13, 2013.  This is a full grant of the benefit sought on appeal, and there remains no outstanding time period on appeal for which to consider TDIU. Therefore, this issue is no longer before the Board.

With regards to an October 2021 Board correspondence, requesting for a waiver of the AOJ's initial consideration for additionally obtained evidence since the issuance of the Supplemental Statement of the Case (SSOC), the Veteran submitted a signed waiver in November 2021. 

Once a claim is certified to the Board, a representative may not withdraw services in the appeal unless good cause is shown on motion. Good cause for such purposes includes extended illness or incapacitation, failure of the appellant to cooperate with proper preparation and presentation of the appeal, or other factors which make the continuation of representation impossible, impractical, or unethical. See 38 C.F.R. § 20.6(a)(2). A motion to withdraw representation must include a signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant, setting forth the address to which the copy was mailed. The Board finds that the representative's November 2021 motion to withdraw complies with the aforementioned requirements and is therefore granted. To date, the appellant has not appointed a new representative and will therefore be considered pro se in this appeal.

The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54.

The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claim.

1. Entitlement to a compensable rating for left ankle scar

2. Entitlement to a compensable rating for left shoulder scar

3. Entitlement to a rating in excess of 10 percent for painful left shoulder scar 

The Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or his authorized representative. Id. 

In this case, prior to submitting a motion to withdraw representation, the Veteran's private attorney submitted a written request to the Board in January 2021 that clearly and unequivocally expressed an intent to withdraw the appeals for entitlement to a compensable rating for left ankle scar and left shoulder scar, and a rating in excess of 10 percent for painful left shoulder scar. See January 2021 correspondence [post-Board remand, the RO granted a separate rating for painful left shoulder scar, which was also addressed in the subsequent supplemental statement of the case (SSOC) in November 2020]. As there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review these claims and are dismissed.

Increased rating

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3.

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

4. Entitlement to a rating in excess of 40 percent for degenerative arthritis of the lumbar spine with IVDS (previously rated as lumbosacral spondylosis)

The Veteran contends he has daily lower back pain and claims activities, such as lifting/pulling/bending, aggravate the back condition and cause more problems. He also claims that his back problem has led to the loss of his ability to perform duties in his trade as a builder. 

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria for only the period from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 

Prior to the regulatory change, DC 5242 provided criteria for degenerative arthritis of the spine, referencing DC 5003. As of February 7, 2021, the amended version of DC 5242 provides criteria for degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome, and references DC 5003 and 5010. Under the amended criteria, DC 5003 now provides criteria for degenerative arthritis, other than for post-traumatic (but the rating criteria itself, including that applicable to spine disorders, are the same as the pre-amendment version). The amended DC 5010 provides criteria for post-traumatic arthritis and directs ratings be based on "limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25."

With regards to DC 5243, the Board notes that the rating criteria itself remain the same as the pre-amended versionthe pre-amended version of DC 5243 provided criteria for intervertebral disc syndrome. The amended DC 5243 now directs evaluation be made under this DC "only when there is disc herniation with compression and/or irritation of the adjacent nerve root" and to "assign diagnostic code 5242 for all other disc diagnoses."

Regardless, both versions of the regulations instruct that DCs 5235 to 5243 to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes.

Under either version of the General Rating Formula, the current 40 percent rating is assigned for forward flexion of the lumbar spine 30 degrees or less; or, favorable ankylosis of the entire lumbar spine. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire lumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.

Additionally, Note 1 following the General Rating Formula specifies that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate DC. Note 2 following the General Rating Formal provides that normal forward flexion of the lumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. See 38 C.F.R. § 4.71a, DCs 5235 through 5242.

Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note 1 following the Formula for Rating IVDS specifies that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DC 5243.

Turning to the medical evidence of record, the Board initially notes that the May 2014 VA examination and the March 2017 VA examination were found inadequate by the Board, for the reason of them having failed to include testing for pain on both active and passive motion, weight-bearing and non-weight bearing and address the functional effects of flare-ups despite the Veteran's report of flare-ups. See August 2019 Board remand. With regards to the March 2017 VA examination, the Board also pointed out in the August 2019 Board remand, that it is not clear whether the Veteran has IVDS (ie. meet the criteria for rating purposes under DC 5243 or not), given that examination provides "the Veteran had IVDS of the thoracolumbar spine with episodes of bed rest having a total duration of at least four weeks but less than six weeks during the past 12 months" but also "[...] there is no evidence of record demonstrating a prescription of bed rest by a treating physician" when asked to provide the documentation to support the aforementioned finding pertaining to IVDS. Nonetheless, the Board will proceed to address at least some portions of these examinations that remain relevant to adjudication (and not inadequate) at this time.

During the May 2014 VA examination, the Veteran was diagnosed with degenerative arthritis of the spine and lumbosacral spondylosis. He reported frequent shooting pain into the left lower extremity and sciatica, as well as chronic low back pain and impaired mobility affecting routine activities of daily living after a major flare-up injury in 2013. His muscle strength was normal, with no evidence of muscle atrophy. His sensory exam was normal, but he presented "absent" reflex exam results. His straight leg raising test was positive. There was evidence of "moderate" intermittent pain in the left lower extremity, affecting the left sciatic nerve that is of mild severity, with no other neurologic abnormalities. There was no evidence of ankylosis, and his functional impact was described as "can work at light physical exertion in one to two hour intervals." There was no evidence of IVDS.  

During the March 2017 VA examination, the Veteran was diagnosed with lumbar spondylosis with bilateral radiculopathy. He reported constant aching pain (8/10) and flares (10/10), bilateral sciatica with shooting pains occurring multiple times a day, and paresthesias on thighs. He reported flare-ups/functional impairment being triggered by "sitting longer than 10-15 minutes then have stand up and walk before sitting down again, any bending, walking or slippery ground, lifting/pushing/pulling more than 25 pounds, standing longer than 20 minutes, and walking more than 1/8 miles." There was no evidence of ankylosis, and his functional impairment was noted to be consistent with the Veteran's report of functional impairment. His muscle strength testing, sensory exam, and reflex exam were all normal, with no evidence of muscle atrophy. There was evidence of "mild" intermittent pain in the right lower extremity, "mild" paresthesias and/or dysesthesias and numbness in bilateral lower extremity, involving bilateral sciatic nerve that is mild in the right side and moderate in the left side. There was no evidence of other neurologic abnormalities. His imaging studies of record showed arthritis. 

Post-Board remand, the Veteran was afforded a new VA examination in November 2020 for his back disability. He was diagnosed with degenerative arthritis of the spine and intervertebral disc syndrome, and the examiner indicated that the Veteran's condition has worsened since the onset. The Veteran did not report flare-ups but reported functional impairment of inability to lift more than 20 pounds. His initial ROM of forward flexion was limited to 40 degrees, and extension to 20 degrees, and pain noted on examination was found to cause functional loss. There was objective evidence of localized tenderness or pain on palpation on the left low back, as well as pain with weight bearing. He was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or ROM. While he was not examined immediately after repetitive use over time, the examiner indicated that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time, and further described the limitation of ROM of forward flexion due to pain is to 30 degrees, and that of extension to 10 degrees due to pain. Additionally, although examination was not conducted during a flare-up, the examiner indicated that the examination is medically consistent with the Veteran's statements describing functional loss during flare-up. No additional factors were identified as contributing to disability. His muscle strength was 4/5 for both right and left side, with no evidence of muscle atrophy. His reflex exam was normal, and sensory exam was "decreased" for right/left upper anterior thigh, right/left thigh/knee, left foot/toe, and left lower leg/ankle, and "normal" for right lower leg/ankle, right foot/toe. As for radiculopathy, the Veteran was found to have "moderate" intermittent pain, paresthesias and/or dysesthesias, and numbness in bilateral lower extremity, in which bilateral femoral and sciatic nerves are affected, that is "moderate" in severity. He presented positive straight leg raising test. There was no evidence of ankylosis, and his functional impact was noted to be inability to lift more than 20 pounds. There were no other neurologic abnormalities. Even though the Veteran was found to have IVDS, there was neither objective nor subjective evidence of episodes and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. He was found to occasionally use a cane, and the available imaging studies showed arthritis. The examiner further commented that there is evidence of pain with non-weight bearing, but explained that the passive ROM was the same as the active ROM. 

His treatment records show complaints of constant dull low back pain, aggravated by certain activities and alleviated by pain medications, accompanied by frequent pain and numbness radiating down to the lower extremities. However, there is otherwise no indication of ankylosis or any functional impairment that would be functionally equivalent to ankylosis. 

After reviewing all pertinent records, the Board finds that the Veteran does not warrant a rating in excess of 40 percent under either the pre-amended/amended version of DC 5242-5243 (neither version is particularly favorable). Notably, in this case, there was no evidence of unfavorable ankylosis of either the entire spine or the entire thoracolumbar spine (see further analysis immediately below). The extent of any functional impairment reported by the Veteran were his inability to lift more than 20 pounds, flare-ups/functional limitations triggered by activities requiring bending/lifting/standing or sitting for an extended period of time. He also consistently presented either 4 or 5 muscle strength, and either normal or only decreased (at worst) sensory exam, with no evidence of muscle atrophy. Thus, the Board finds that he is not warranted a rating in excess of 40 percent under DC 5242. His previous evaluation under DC 5237 yields the same result as that code is also evaluated using the same criteria as that for DC 5242 (General Rating Formula). Thus, the Board finds that a higher rating in excess of 40 percent for the Veteran's current back disability is not warranted.  

The Board also considered the possibility of awarding a higher rating with consideration of 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995), Thompson v. McDonald, 815 F. 3d 781 (Fed. Cir. 2016), Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011). The U.S. Court of Appeals for Veterans Claims (CAVC) recently held in Chavis v. McDonough, No. 18-2928 (U.S. Vet. App., April 16, 2021) that application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula for Diseases and Injuries of the Spine of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis in other words, if the demonstrated functional loss is the functional equivalent of ankylosis. In Chavis, the CAVC noted that the rating criteria define ankylosis in terms of limitation of motion. See 38 C.F.R. § 4.71a, General Rating Formula, Note (5) (ankylosis is a condition in which the spine or a spinal segment is fixed in flexion or extension). Essentially, ankylosis contemplates "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012); see also Villareal v. Principi, 18 Vet. App. 13 (2001) (defining ankylosis to mean that "a joint is fixed, or 'frozen' in one position"). 

In this case, while the Board acknowledges the Veteran's report of inability to lift more than 20 pounds, flare-ups/functional limitations triggered by certain activities, the Board concludes that such alleged functional losses are not consistent with that contemplated by ankylosis. Notably, there is no suggestion of any limited motion of the spine comparable to any type of immobility; he was still able to perform forward flexion and his forward flexion limited to 30 degrees due to pain, and extension to 10 degrees due to pain. Also, to the extent that the Veteran has experienced functional loss due to pain, he has not alleged functional impairment comparable to that experienced by an individual with immobility of part of the spine. His symptoms are fully contemplated by the assigned schedular rating. The DeLuca concepts of functional loss, painful motion, etc. are still used to apply the rating criteria found in the diagnostic codes. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016) and Mitchell v. Shinseki, 25 Vet. App. 32, 36 (2011). The Thompson court explained: "Section 4.40 also makes clear that functional loss may be due to pain and that pain may render a part seriously disabled. When evaluating a disability, § 4.40 provides a broad canvas. However, whatever the background, an applicant for disability benefits is rated based on the criteria set forth in § 4.71a." Thompson, 815 F.3d at 786. So, in other words, pain alone without it resulting in any functional loss is not enough to warrant an increased rating. The Veteran was also able to perform after repetitive use testing, even with objective evidence of pain, without any additional limitation of range of motion. The extent of limitation he described himself were inability to lift more than 20 pounds, and flare-ups occurring with certain activities requiring bending/lifting/standing or sitting for an extended period of time. As such, the current rating adequately compensates him for his pain with limited motion, and a higher rating is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995), nor is his disability the equivalent of ankylosis.

The Board also considered the possibility of warranting a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (under either the pre-amended or amended version), but finds it not applicable. First, the Board points out that while the Veteran was found to have IVDS, there was neither objective nor subjective evidence of episodes and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Moreover, while the amended DC 5243, it instructs assignment under DC 5243 only when there is disc herniation with compression and/or irritation of the adjacent nerve root (and to assign DC 5242 for all other disc diagnoses), there is no indication of compression and/or irritation of the adjacent nerve root, which suggests that this disability should be assigned under DC 5242 under this amended version. In light of these findings, the Board finds that the Veteran does not warrant a rating in excess of 40 percent throughout this period under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes as well.

With regards to any associated neurological abnormalities, there is evidence of radiculopathy in the right and left lower extremities. As for the radiculopathy of the right lower extremity, RO granted two separate ratingsright lower extremity radiculopathy of sciatic nerve (10 percent prior to November 18, 2020, and in excess of 20 percent thereafter, under DC 8720) and femoral nerve (20 percent from November 18, 2020) under DC 8726. The RO also granted a separate rating for radiculopathy of left lower extremity, femoral nerve, with a 20 percent under DC 8726, effective November 18, 2020, in addition to granting a higher rating for radiculopathy of the left lower extremity, sciatic nerve (previously rated as left lower extremity radiculopathy, which is the issue currently on appeal). The RO did not include right lower extremity radiculopathy of sciatic/femoral nerve or left lower extremity radiculopathy of femoral nerve in the subsequent SSOC, so the Veteran was not led to believe these issues would be considered by the Board. The Veteran has also not submitted any statements suggesting that he believes these issues are part of his appeal, and his representative has not argued the ratings for these conditions are part of this appeal. Accordingly, entitlement to a higher disability rating for the radiculopathy of the right lower extremity and radiculopathy of the left femoral nerve are not before the Board. As this conclusion is applicable throughout the entire appeal period, the Board will not provide a separate analysis section below. With regards to the increased rating for radiculopathy of left lower extremity (sciatic nerve), the Board will provide a separate analysis below, as it is currently on appeal. 

As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

5. Entitlement to a rating in excess of 10 percent prior to November 18, 2020, and in excess of 20 percent from November 18, 2020, for radiculopathy of left lower extremity (sciatic nerve)

The Veteran seeks a higher disability rating for his left lower sciatic nerve radiculopathy. He contends that he has spasm and radiating pain down his left lower extremity. 

The Veteran is currently in receipt of a 10 percent rating prior to November 18, 2020, and a 20 percent rating thereafter, for his radiculopathy of left lower extremity (sciatic nerve) (previously rated as left lower extremity radiculopathy), under DC 8720.

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, and DC 8720 is provided for neuralgia of sciatic nerve. Under these criteria, 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 words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. 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).

Prior to November 18, 2020

During the May 2014 VA examination, the Veteran reported frequent shooting pain into the left lower extremity and sciatica. While his muscle strength and sensory exams were normal, he presented "absent" reflex exam results. His straight leg raising test was also positive. There was evidence of moderate intermittent pain in the left lower extremity, affecting left sciatic nerve that is of "mild" severity, with no other neurologic abnormalities.

During the March 2017 VA examination, the Veteran reported bilateral sciatica with shooting pains occurring multiple times a day, and paresthesias on thighs. There was evidence of mild paresthesias and/or dysesthesias and numbness in the left lower extremity, involving sciatic nerve that is "moderate" in the overall severity. The Veteran's muscle strength testing, sensory exam, and reflex exam were all normal, with no evidence of muscle atrophy. He reported sciatica manifesting with shooting pains multiple times a day and paresthesias on thighs. He had a positive straight leg raising test. See March 2017 VA examination.

There is evidence of constant increased level of pain/numbness and sensory deficit in the left sciatic nerve (see August 2014 VA treatment records, "DTR are absent in lower extremities, toes are down going," "electric current and tingling, numbness, pain radiating down his left thigh and hips"; see September 2014 VA treatment records, "reports increased pain over the entire left side"; see October 2015 VA treatment records, "daily pain, at times severe, radicular leg pain"; see September 2013 VA treatment records; see January 2015 VA treatment records; see May 2015 VA treatment records, frequent pain down backs of both legs; see January 2016 VA treatment records, reporting increased pain in his left buttock/thigh/foot that is of 10/10; see also September 2018 VA treatment records, showing no sensory deficits with light touch in lower extremities, but strength being diffusely limited on the left side, and patellar and ankle reflexes being 1+, and straight leg raise test is positive on the left). February 2020 VA treatment records also show worsening radiating tingling into his leg that is limiting his activities (with sitting for a prolonged period aggravating his symptoms), as well as sharp/burning pain on the top/bottom of his foot. 

Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran warrants an increased rating of 20 percent, but no higher, for his left lower extremity radiculopathy of sciatic nerve prior to November 18, 2020, under DC 8720.

Although the Board acknowledges the May 2014 VA examination showing left sciatic nerve that is of "mild" severity, the Board points out that the contemporaneous medical records documented absent DTR in the lower extremities with toes "down going" (August 2014 VA treatment records) and frequent radicular leg pain that is at times severe (i.e., 10/10)/increased pain over the entire left side (September 2014 and October 2015 VA treatment records). Moreover, even during the May 2014 VA examination, he manifested "moderate" intermittent pain in the left lower extremity, with "absent" reflex exam results, and the Veteran himself reported "shooting pains" radiating down multiple times a day. In addition, during the March 2017 VA examination, the Veteran again reported shooting pains multiple times a day and manifested mild paresthesias and/or dysesthesias and numbness in the left lower extremity, involving sciatic nerve that is "moderate" in the overall severity. Considering the severity and the frequency of these symptoms, the Board finds that the Veteran's left sciatic nerve radiculopathy most closely approximates that of a 20 percent rating under DC 8720. While a rating in excess of 20 percent is available under DC 8720, the Board concludes there is no evidence of incomplete severe or moderately severe radiculopathy of left sciatic nerve warranting a rating in excess of 20 percent. He consistently showed "normal" sensory and muscle exams, with either "absent" or "normal" reflex exam. Even taking into consideration his report of shooting pain occurring multiple times throughout a day, the extent of motor/functional limitations, if any, were of him being confined to work in light physical exertion in 1-2 hour intervals, inability to sit longer than 10-15 minutes, lift/push/pull more than 25 pounds, stand more than 20 minutes, and walk more than 1/8 miles. There was also no evidence of any trophic changes.  Moreover, while complete paralysis allows an 80 percent rating (maximum rating allowed under DC 8520), there is no evidence of complete paralysis anytime during this period. Notably, there was neither evidence of any foot dangling/dropping, nor no active movement possible of muscles below the knee/flexion of knee weakened or lost. 

Thus, the Board finds that the Veteran's radiculopathy of left lower sciatic nerve warrants a higher rating of 20 percent, but no higher, prior to November 18, 2020, under DC 8720.   

From November 18, 2020 to present

During the November 2020 VA examination, the Veteran manifested "moderate" intermittent pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity, involving sciatic nerve that is "moderate" in severity. He presented positive straight leg raising test. His reflex exam was normal, and sensory exam was "decreased" for left upper anterior thigh, left thigh/knee, left foot/toe, and left lower leg/ankle. His muscle strength was 4/5 for both right and left side, with no evidence of muscle atrophy.

There are otherwise no pertinent treatment records pertaining to his left lower extremity radiculopathy condition. 

After reviewing all pertinent records, the Board finds that the weight of the competent evidence of record does not support a finding that the Veteran warrants a rating in excess of 20 percent, for his left lower extremity radiculopathy of sciatic nerve, since November 18, 2020. His sciatic nerve symptoms were limited to "moderate" severity, at worst (presenting "moderate" intermittent pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity), and there was no evidence of any muscular atrophy. His sensory exam was only "decreased" in the left lower extremity at worst, and he also manifested normal reflex exam. Moreover, while complete paralysis allows an 80 percent rating (maximum rating allowed under DC 8520), there is no evidence of complete paralysis anytime during this period. Notably, there was neither evidence of any foot dangling/dropping, nor no active movement possible of muscles below the knee/flexion of knee weakened or lost.

Accordingly, entitlement to ratings in excess of 20 percent for the left lower extremity radiculopathy of sciatic nerve is not warranted, effective November 18, 2020. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

6. Entitlement to higher ratings for persistent depressive disorder associated with the lumbar spine condition (previously evaluated as insomnia disorder, with other medical comorbidity) 

Pertinent regulations were provided in the March 2017 SSOC and will not be repeated here in full. 

The Board had previously remanded for an examiner to opine on whether any non-sleep impairment psychiatric symptoms are part of the Veteran's service-connected insomnia disorder, noting that neither the December 2016 VA psychiatric opinion nor the July 2018 private opinion indicated such. Since then, a new VA medical opinion has been obtained, in which the examiner indicated that the Veteran's previous diagnosis of insomnia disorder with other medical comorbidity has been changed to dysthymic disorder with anxious distress, and opined that his sleep problems are in fact part of his non-sleep psychiatric conditions (rather than the other way around), noting that sleep disturbance is a symptom for most mood and anxiety disorders, instead of being a separate and distinct disorder, and further explained that there are a number of overlapping symptoms among psychological disorders (see August 2020 medical opinion, "it is at least as likely as not that the Veteran's sleep problems are part of the Veteran's non-sleep disorder (i.e. persistent depressive disorder") [and since then, RO has recharacterized the current issue on appeal as the persistent depressive disorder (previously evaluated as insomnia disorder, with other medical comorbidity)].

The February 2015 rating decision on appeal continued the 30 percent rating in effect for the mental health condition.  During the course of the appeal, a September 2020 decision increased the rating to 50 percent effective July 18, 2018.  An October 2021 rating decision then changed the effective date for that 50 percent rating to December 29, 2016, and also awarded an increase to 70 percent effective July 18, 2018, with a 50 percent rating being assigned from August 11, 2020. 

For the reasons discussed below, the Board concludes a 70 percent rating was warranted for the entire appeal period. 

The Veteran first underwent a VA psychiatric examination in May 2014, during which time he was diagnosed with insomnia disorder with other medical comorbidity. His psychiatric condition was summarized as "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation." He was found to manifest symptoms of depressed mood and chronic sleep impairment. During the examination, he reported being "pretty angry. I am pretty upset. I am not real patient with people...I try to stay away from people," as well as sleep problems affecting his mood, where he is irritable and is not interested in being around other people due to irritation. Upon behavioral observation, he was noted to be angry and irritable at times, congruent with his affect and the content of the conversation. While he denied homicidal or suicidal ideation, he was noted to have fleeting thoughts [of suicide] when his pain is bad, although he also stated "it always get better because this too shall pass. My job is to not let myself fall into that deep dark place again. It is a permanent solution to a temporary problem. It does pass." He was noted to be quite verbose and difficult to follow at times, jumping from one topic to another in a somewhat tangential fashion. He maintained appropriate eye contact and displayed grooming and hygiene in the above average range. His thoughts were tangential and loose, but he denied hallucinations or delusions. He was found to be capable of managing his financial affairs.

During a December 2016 VA psychiatric examination, the Veteran was diagnosed with insomnia disorder with other medical comorbidity, unspecified anxiety disorder, and mild alcohol use disorder. His diagnosed psychological condition was described as "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. He reported worsening sleep disturbance/problems, affecting his mood/irritability. He presented symptoms of depressed mood and chronic sleep impairment. Upon behavioral observation, he was found to have neutral to irritable mood, congruent with his affect and content of conversation; speech pressured in rate, but otherwise normal in pitch; casually dressed; grooming and hygiene in the average range; logical and goal-directed thoughts; laugh appropriately and display a good sense of humor, but also argumentative at times. He denied any hallucinations or delusions, and there was no evidence of a thought disorder. He did report being forgetful and misplacing things and there being "still small voice"/"guiding voice" that helps him locate what he has misplaced, but he said he sees no result from paying attention to it. He denied any obsessive thoughts/compulsive behaviors, as well as having any homicidal/suicidal ideation. He was found to be capable of managing his financial affairs. He continuously reported disrupted sleep, excessive anxiety, and depressed mood. 

September 2014 VA treatment records document report of transient thoughts of suicide on occasion, despite having linear thoughts. He denied having specific plan, intent or homicidal ideation, but he was also noted to have poor insight/judgement during that time. Treatment records throughout this period also show symptoms of intolerance of others being a major source of difficulty, sleep disturbances, being easily started and being constantly on guard, and presenting little interest/pleasure "several days" and feeling down/depressed, agitation, depression, and report of anger, feeling detached from others. His December 2016 VA treatment records show increased symptoms associated with insomnia/dysphoria. He was noted to be anxious with dysphoric mood; appropriately groomed; oriented in all 4 spheres; restless. His speech was spontaneous and loud; thought content was clear, relevant, and linear; judgment was appropriate, but insight was limited; memory was intact. He denied any ideations of SDV, and his chronic pain/trauma were noted to be stressors of his psychological symptoms. January 2017 VA treatment records show appropriate hygiene; dressed casually; irritable with dysphoric mood; tangential and difficulty to follow at times. September 2017 treatment records show that he would not stay focused for at least 7 hours/8 hours work-day and that he would respond in an angry manner, but without getting violent, more than once per month. 

The Veteran submitted a lay statement from his mother, who noted the Veteran's symptoms of panic attacks (often, several times a week), getting frustrated easily and over nothing, getting not much sleep at night making him more irritable, severe mood swings and frustration leading to lashing out at others, loss of concentration, struggle with getting things completed around the house due to his depression and lack of sleep, lack of energy most days, being forgetful about things. See November 2017 lay statement. 

During a July 2018 private Disability Benefits Questionnaire examination, the Veteran was diagnosed with insomnia disorder, unspecified depressive disorder, unspecified anxiety disorder. His psychological status was summarized as "occupational and social impairment with deficiencies in most areas." He manifested symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, intermittent inability to perform activities of daily living. He reported he can no longer enjoy the simplest of activities, and he was noted to grocery shop only when he needed, making simple meals (i.e., soup, spaghetti, left over foods), do laundry once a month, showers daily or every other day, and manages his finances. Upon physical observation, he demonstrated normal attention, seemingly variable concentration, average judgment, average ability to interpret proverbs, goal directed thought, normal speech flow, appropriate thought content for the circumstances of the day. There was no report of overt hallucinations.  He reported suicidal ideations but denied intent or plan. The Veteran was noted to suffer from broken sleep, secondary to depression, resulting in restlessness, and decreased energy and motivation. He was also noted to be unable to stay on task or focus and attend to complete a project, as well as a significant mood swings from irritability and anger to emotional outbursts, such as crying. Due to his difficulty trusting others, remembering details occasionally, and maintaining and sustaining a steady mood, he was noted to be unable to have meaningful occupational or social relationships. 

During the August 2020 VA examination, the Veteran's previous diagnosis of insomnia disorder with other medical comorbidity was changed to dysthymic disorder with anxious distress. His psychological status was summarized as "occupational and social impairment with reduced reliability and productivity." He was noted to manifest symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships.  Upon behavioral observations, the Veteran was noted to be casually dressed in clothing appropriate for the weather, with angry/irritable/argumentative presentation. His speech was rapid but logical and goal-oriented with focus on complaints about almost everything, congruent content of speech. He admitted that he is often angry and agitated and "frustrated with everything" but the examiner indicated that his level of agitation slowly decreased as the interview progressed, and him stating towards to end of the session, "see, it does help to talk things out." He was found to be capable of managing his financial affairs. He denied current suicidal ideation, but admitted to intermittent thoughts of self-harm. He denied any plans and said he is able to dismiss the thoughts and "I don't pay any attention to them." Nonetheless, the examiner indicated that the Veteran is considered to be at increased risk of self-harm, due to his admission of intermittent suicidal ideation and his diagnosed psychological conditions. 

Although there are treatment records post-August 2020 VA examination, there are no pertinent records relevant to any psychiatric conditions. 

Resolving reasonable doubt in favor of the Veteran, and considering the severity and frequency of the episodes involving impaired impulse control and fleeting, but occasional, thoughts of suicide, the Board finds that the Veteran warranted a rating of 70 percent for the entire appeal period.  Although the Veteran consistently denied having suicidal ideation and described having only fleeting thoughts of suicide that eventually do pass, the Board underlines that such were noted to occur in a relatively high frequency with much consistency (ie. when his pain is bad and/or occasionally when he is feeling depressed for days/weeks). Moreover, he was consistently found to manifest irritable/angry mood (ie. unprovoked irritability, with periods of verbal violence). The August 2020 VA examination continued to note symptoms of intermittent thoughts of self-harm and impaired impulse control, and concluded that the Veteran is at "increased risk of self-harm." In light of the frequency and the severity of his impaired impulse control and intermittent thoughts of self-harm, the Board concludes that his psychiatric condition most closely approximated that consistent with a 70 percent rating for the entire period on appeal. 

The Board has also considered whether the Veteran is entitled to the next higher rating of 100 percent under DC 9433, but finds such inapplicable. The Veteran has never exhibited gross impairment in thought processes or communication; grossly inappropriate behavior; or memory loss for names of close relatives, own occupations, or own name; disorientation to time or place.  The Veteran's thoughts of suicide at times do not amount to persistent danger of hurting self. Moreover, there is neither objective nor subjective indication of the Veteran having persistent homicidal ideation. Although the Board acknowledges the notation of "intermittent inability to perform activities of daily living" in the July 2018 private DBQ, the preponderance of the evidence suggests otherwise. See May 2019 VA treatment records (well dressed and groomed); September 2018 VA treatment records (fair grooming and reports he cooks once a week and eats a lot of fruit). Even during that 2018 examination, the extent of any limits relating to daily living reported by the Veteran was that he "can no longer enjoy the simplest of activities." He was still found to be capable of doing grocery shopping, making meals (even if relatively simple), doing laundry (even if not relatively frequent), and taking a shower (reported taking shower every day) during that examination. He was also noted to be capable of managing his finances. Thus, his symptoms do not rise to the level of total occupational and social impairment of a 100 percent rating. 

In summary, the Veteran's symptoms most closely approximately that of 70 percent, which is granted during the time periods on appeal when lower ratings were assigned.  The evidence preponderates against assigning any higher rating. 

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Lee, Catherine

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.