Citation Nr: 21077235 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-29 998 DATE: December 29, 2021 ORDER Service connection for right lower extremity sciatic radiculopathy is granted. Service connection for left lower extremity sciatic radiculopathy is granted. Entitlement to an initial rating of 20 percent for left upper extremity radiculopathy is granted. Entitlement to a separate rating of 10 percent for right knee instability is granted. REMANDED Service connection for headache impairment as secondary to degenerative joint disease of the cervical spine is remanded. Entitlement to an initial rating in excess of 10 percent for left foot Morton neuroma is remanded. Entitlement to a rating in excess of 10 percent for degenerative changes with tear of medial meniscus right knee is remanded. Entitlement to a rating in excess of 10 percent for minimal degenerative arthrosis left knee is remanded. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. Entitlement to a rating in excess of 30 percent for degenerative joint disease of the cervical spine is remanded. Entitlement to a rating in excess of 40 percent for right upper extremity radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran's right sciatic radiculopathy is related to service. 2. The Veteran's left sciatic radiculopathy is related to service. 3. The Veteran's left upper extremity radiculopathy is characterized by mild, incomplete paralysis of a minor limb. 4. A separate rating of 10 percent for right knee instability is granted. CONCLUSIONS OF LAW 1. The criteria for service connection for left sciatic radiculopathy have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for right sciatic radiculopathy have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for an initial disability rating of 20 percent for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.14, 4.124a, Diagnostic Code 8713. 4. The criteria for an initial disability rating of 10 percent for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.14, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from June 1974 to May 1977 and February 2002 to January 2003. The Veteran served in combat and his decorations include the Combat Acton Badge. This matter is on appeal from rating decisions dated November 2014 (neck and right upper extremity radiculopathy) and December 2016 (knees, left foot, and legs). In July 2019, a hearing was held before the undersigned. This matter was previously remanded in November 2020. In June 2021, the RO granted service connection for right ankle tendonitis with edema, left ankle tendonitis with edema, and right plantar fasciitis. These issues were the subject of the November 2020 Board remand. In September 2021, the Board sent the Veteran a letter asking whether he wished The American Legion or Richard Rhea to serve as his power of attorney. As the Veteran did not respond, by the terms of the letter, the Board shall assume that the Veteran wishes for Richard Rhea to proceed as power of attorney. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 44748. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 51214 (1998). 1. Service connection for right lower extremity sciatic radiculopathy 2. Service connection for left lower extremity sciatic radiculopathy Service connection is warranted for bilateral sciatic neuropathy. The first element is met, in that the March 2021 VA nerves examination (received 4/12/21) indicates a current diagnosis of bilateral sciatic radiculopathy of the lower extremities. The second element is met, in that the Veteran argues that this disorder is the result of in-service parachute jumps and running. The nexus element is also met, in that the evidence is at least in equipoise. A March 2021 VA medical opinion concludes that the Veteran's "right and left leg disabilities" are at least as likely as not related to service. The basis is the lack of such disabilities upon entry but the existence of such disorders following "repetitive tasks including over 23 parachute jumps as well as years of running." Per the examiner, "[t]here is evidence of chronicity and a nexus has been established." A June 2021 VA addendum opinion concludes that the Veteran's leg disorders are less likely than not aggravated beyond their natural progression by service. The rationale is that a specific radiculopathy diagnosis was not made until well after service. Rather, the examiner concludes that the Veteran's radiculopathy was caused by his nonservice-connected back disorder. These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30102 (2008). There is no basis to ascribe greater probative value to one opinion over the other. As the evidence is at least in equipoise, the Veteran is entitled to a favorable finding with respect to the existence of a nexus between bilateral sciatic neuropathy and service. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 5556 (1990). Service connection is warranted for bilateral sciatic neuropathy. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Radiculopathy Rating Criteria Diagnostic Code 8713 provides ratings for neuralgia of all radicular groups. 38 C.F.R. § 4.124a. Neuritis is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. Diagnostic Code 8513 provides ratings for paralysis of all radicular groups. 38 C.F.R. § 4.124a. Mild, incomplete paralysis is rated 20 percent disabling on the major side and 20 percent on the minor side. Id. Moderate, incomplete paralysis is rated 30 percent disabling on the major side and 20 percent on the minor side. Id. Severe, incomplete paralysis is rated 70 percent disabling on the major side and 60 percent on the minor side. Id. Complete paralysis is rated at 90 percent on the major side and 80 percent on the minor side. Id. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement. Id. The words "slight," "mild," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Radiculopathy Evidence In June 2021, the RO granted service connection for left upper extremity radiculopathy at a noncompensable rating under Diagnostic Code 8713 from March 23, 2021. This decision issued during the Veteran's appeal of his neck rating. The Board has jurisdiction to consider the proper rating for radiculopathy as part of an appeal of an increased rating for a neck disability rating. Chavis v. McDonough, 34 Vet. App. 1, 33 (2021) ("VA's consideration of ... neurologic manifestations as part of the claim seeking higher compensation for the lumbar spine disability is ... consistent with VA's duty to sympathetically read pro se pleadings."). The November 2014 VA neck examination indicates right upper extremity radiculopathy characterized by no chronic pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Overall severity is characterized by mild, intermittent severity. Left upper extremity radiculopathy symptoms are not indicated. The examiner indicates that the Veteran's neck disorder does not impact his ability to work. The November 2014 VA nerves examination additionally indicates decreased sensation testing for light touch in the left inner/outer forearm and hand/fingers. Sensation is normal for the left shoulder and for all tested areas of the left upper extremity. The examiner indicates that the Veteran's nerve disorder does not impact his ability to work. The March 2015 VA neck examination describes functional loss characterized by an inability to perform "heavy lifting and overhead reaching and lifting." Muscle strength is normal for the left upper extremity but decreased for all tested groups on the right upper extremity. Reflexes are absent for the right triceps and right brachoradialis, but normal for the right biceps. Reflexes are decreased for the left brachioradialis but normal for the left triceps and biceps. Senses are decreased for the right inner/out forearm and right hand/fingers, but normal for the right shoulder area and corresponding left upper extremity groups. Right upper extremity radiculopathy symptoms are characterized as moderate constant pain, no intermittent pain, severe paresthesias and/or dysesthesias, severe numbness, and mild overall severity. No radiculopathy symptoms are reported for the left upper extremity. The examiner indicates that the Veteran's neck disorder does not impact his ability to work. The October 2018 VA neck examination indicates pain "radiating down right [arm]" and "hand numbness." Muscle strength is decreased for right elbow flexion and right elbow extension and normal for all other muscle groups tested on the right side. Muscle strength is normal for the left upper extremity. There is right upper extremity radiculopathy characterized by severe constant pain, no intermittent pain, severe paresthesias, severe numbness, and moderate overall severity. The Veteran uses a "[r]ight arm brace for right arm weakness." For the left upper extremity radiculopathy symptoms are not indicated. Right upper extremity radiculopathy impacts the Veteran's ability to write. Regarding left upper extremity radiculopathy, the examiner states: "Veteran reports symptoms of left sided radiculopathy but the exam did not support its diagnosis." In the July 2019 hearing transcript, the Veteran indicates that his right arm gets numb after the extended periods of writing required by his job as a state court judge. He also describes numbness and muscle spasms associated with his right upper extremity. In an October 2019 statement, the Veteran's wife describes "trouble lifting anything heavy above his shoulders" and "trouble reaching up over his head." The extensive writing he does in his position as a judge results is muscle spasms. A March 2021 VA shoulder and arm examination indicates "IA injections in his bilateral shoulder and neck" in September 2020. There is "[c]onstant severe pain in the right upper extremity and constant mild pain in the left upper extremity" with "[d]ecreased range of motion" and "numbness and tingling in bilateral upper extremities right > left." During flareups, symptoms on the right side are worse than on the left, but for both extremities there is "[d]ifficulty with lifting and carrying." Flareups of the right upper extremity are precipitated with writing. For the left upper extremity, flareups occur "4-5 times weekly," are precipitated by use, and are characterized by "increase in pain as well as numbness and tingling." The March 2021 VA nerves examination indicates bilateral upper extremity radiculopathy. For the right upper extremity lower radicular groups there is severe constant pain, no intermittent pain, severe paresthesias and/or dysesthesias, severe numbness, and an overall severity of moderate, incomplete paralysis. For the left upper extremity lower radicular groups there is mild constant pain, no intermittent pain, mild paresthesias and/or dysesthesias, mild numbness, and an overall severity of moderate, incomplete paralysis. Functional loss is reflected by difficulty writing. The March 2021 VA neck examination indicates bilateral upper extremity radiculopathy. For the right upper extremity, there is severe constant pain, no intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. For the left upper extremity, there is mild constant pain, no intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. These disorders impact his ability to work as follows: "Pain, numbness, and tingling to bilateral upper extremities which causes difficulty with typing, writing, lifting." Radiculopathy Analysis 3. Entitlement to an initial rating of 20 percent for left upper extremity radiculopathy The above evidence supports the existence of at least "decreased sensation testing for light touch" in the left upper extremity since at least the time of the November 2014 VA nerves examination. Subsequent VA neck and nerve examination consistently report neurological symptomatology for the left upper extremity. The exception is the October 2018 VA neck examination, but even that examiner notes the Veteran reporting symptoms involving the left upper extremity, even though the examiner ultimately concludes that there is no left upper extremity radiculopathy. This evidence supports the existence of at least mild symptomatology, consistent with an initial rating of 20 percent. As explained below, entitlement to a rating in excess of 20 percent will be remanded for a new examination. Knee Instability Rating Criteria Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Diagnostic Code 5257 Under the former regulations, Diagnostic Code 5257 governs other impairments of the knee. 38 C.F.R. § 4.71a. A 10 percent rating is appropriate for slight recurrent subluxation or lateral instability of the knee. Id. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability of the knee. Id. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability of the knee. Id. Effective February 7, 2021, Diagnostic Code 5257 governs other impairments of the knee, but has separate rating sections for "Recurrent subluxation or lateral instability" and "Patellar instability." 38 C.F.R. § 4.71a. For recurrent subluxation or lateral instability, a 10 percent rating is appropriate for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Id. A 20 percent rating is appropriate for one of the following: a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Id. A 30 percent rating is appropriate for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Id. Effective February 7, 2021, for patellar instability under Diagnostic Code 5257, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a (Note 1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. (Note 2). A 10 percent rating is appropriate for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Id. A 20 percent rating is appropriate for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. Id. A 30 percent rating is appropriate for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. Under Diagnostic Code 5257, VA cannot categorically favor objective medical evidence over lay evidence when making a rating determination. English v. Wilkie, 30 Vet. App. 347, 35253 (2018). Further, because Diagnostic Code 5257 is not predicated on loss of range of motion, §§ 4.40 and 4.45, with respect to pain, do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. The Federal Circuit has upheld the validity of this regulation. Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339, 1349 (Fed. Cir. 2003). As such, the Board will proceed to adjudicate the Veteran's claim. Knee Instability Analysis 4. Entitlement to a separate rating of 10 percent for right knee instability In his September 2016 claims form, the Veteran indicates "bilateral knees giving way." An October 2016 VA knee examination indicates "sensation of instability" (mainly right). In a November 2016 private medical record, the Veteran describes his right knee giving way and "thinks there may have been a pop." The Veteran's right knee disorder is rated under Diagnostic Code 5010-5260 at a rating of 10 percent based on limitation of flexion and painful motion. He is not being rated for right knee instability. Therefore, the Veteran is entitled to a separate rating of at least 10 percent under Diagnostic Code 5257. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for left foot Morton neuroma is remanded. 2. Entitlement to a rating in excess of 10 percent for degenerative changes with tear of medial meniscus right knee is remanded. 3. Entitlement to a rating in excess of 10 percent for minimal degenerative arthrosis left knee is remanded. 4. Entitlement to a rating in excess of 10 percent for right knee instability is remanded. 5. Entitlement to a rating in excess of 30 percent for degenerative joint disease of the cervical spine is remanded. 6. Entitlement to a rating in excess of 40 percent for right upper extremity radiculopathy is remanded. 7. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is remanded. In a July 2021 statement, the Veteran states that he had a recent foot surgery, that he is getting knee injections, and that his back is getting worse. In a November 2021 statement, the Veteran indicates that he has received two recent foot surgeries at VA. Given this evidence of increased symptomatology, a remand is required to afford the Veteran with a contemporaneous VA examination to assess the current nature, extent, and severity of this service-connected disorder. Snuffer v. Gober, 10 Vet. App. 400 (1997). As to the Veteran's cervical spine disability, at the July 2019 hearing, the Veteran argues that he experiences headaches as a result of his neck disorder. Thus, remand is warranted for VA to determine whether the Veteran has a headache disorder that is a manifestation or secondarily related to his neck disorder. See Morgan v. Wilkie, 31 Vet. App. 162, 167 (2019) ("VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code."). In December 2020, the RO sent the Veteran a letter giving him 30 days to submit a general release for medical providers. In June 2021, the Veteran submitted a general release for medical provider. The Veteran submitted another such form in October 2021. Given the above development, the Board finds that the RO should additionally seek to obtain copies of these records before proceeding with an adjudication of the Veteran's claim. The matters are REMANDED for the following action: 1. Obtain all VA treatment records from July 2021 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Take appropriate measures to obtain copies of any outstanding records identified by the Veteran in the June 2021 VA Form 21-4142a and the October 2021 VA Form 21-4142a. The Veteran should be notified if any identified records are unavailable and given an opportunity to respond and submit any additional lay evidence or statements. 3. Provide an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) and obtain a medical opinion regarding the nature, onset, and etiology of any headache impairment. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran any headache impairment. (b.) Whether it is at least as likely as not that any headache impairment was incurred in the Veteran's service. (c.) Whether the Veteran has any headache impairment that is proximately due to his neck disorder. (d.) Whether the Veteran has any headache impairment that was aggravated by his neck disorder. This must be addressed in a separate opinion from the "proximately due to" opinion. In rendering these opinions, the examiner should consider the Veteran's hearing testimony. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. Provide an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) and obtain a medical opinion to determine the nature, extent, and severity of the Veteran's left foot Morton neuroma, knee impairment, neck impairment, and upper extremity radiculopathy impairment. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. The examiner should determine whether the Veteran's left foot Morton neuroma, knee impairment, neck impairment, or upper extremity radiculopathy impairment is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran's range of motion, the examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. The examiner must also comment on the nature, extent, severity, and frequency of the Veteran's left foot Morton neuroma, knee impairment, neck impairment, and upper extremity radiculopathy impairment. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.