Citation Nr: 21007575 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-10 686 DATE: February 10, 2021 ORDER A rating of 20 percent, but not higher, for left lower extremity (LLE) radiculopathy of the sciatic nerve, from April 1, 2014, is granted. A rating of 20 percent, but not higher, for right lower extremity (RLE) radiculopathy of the sciatic nerve, from April 1, 2014, is granted. A rating higher than 10 percent for LLE radiculopathy of the sciatic nerve, prior to April 1, 2014, is denied. A rating higher than 10 percent for RLE radiculopathy of the sciatic nerve, prior to April 1, 2014, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as post-traumatic stress disorder (PTSD) and depressive disorder, is remanded. Entitlement to service connection for LLE diabetic peripheral neuropathy is remanded. Entitlement to service connection for RLE diabetic peripheral neuropathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. From April 1, 2014, resolving all reasonable doubt in favor of the Veteran, his LLE radiculopathy of the sciatic nerve has been manifested by no more than moderate, incomplete paralysis; complete paralysis for the sciatic nerve of the LLE is not shown. 2. From April 1, 2014, resolving all reasonable doubt in favor of the Veteran, his RLE radiculopathy of the sciatic nerve has been manifested by no more than moderate, incomplete paralysis; complete paralysis for the sciatic nerve of the RLE is not shown. 3. Prior to April 1, 2014, the Veteran’s LLE radiculopathy of the sciatic nerve was manifested by no more than mild incomplete paralysis. 4. Prior to April 1, 2014, the Veteran’s RLE radiculopathy of the sciatic nerve was manifested by no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no higher, from April 1, 2014, for LLE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for a 20 percent rating, but no higher, from April 1, 2014, for RLE radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. Prior to April 1, 2014, the criteria for a disability rating higher than 10 percent for LLE radiculopathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. Prior to April 1, 2014, the criteria for a disability rating higher than 10 percent for RLE radiculopathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1970 to October 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2014, April 2016, and June 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran’s representative submitted a waiver of consideration by the agency of original jurisdiction (AOJ) in the first instance of any additional evidentiary submissions. In a May 2018 decision, the Board found that a TDIU claim had been perfected for appeal but a decision on the matter was deferred as the claim was intertwined with issues that were awaiting a personal hearing. In April 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Increased Ratings Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two ratings are potentially applicable, 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. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 1. Entitlement to a rating higher than 20 percent for LLE radiculopathy, from April 1, 2014. 2. Entitlement to a rating higher than 20 percent for RLE radiculopathy, from April 1, 2014. 3. Entitlement to a rating higher than 10 percent for LLE radiculopathy, prior to April 1, 2014. 4. Entitlement to a rating higher than 10 percent for RLE radiculopathy, prior to April 1, 2014. Issues 1-4: A June 2012 rating decision granted separate ratings for bilateral lower extremity radiculopathy, associated with the Veteran’s service-connected back disability, and assigned 10 percent ratings for each extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8599-8520. See Rating Decision (June 2012). On October 24, 2013, VA received a claim for increaes for bilateral lower extremity radiculopathy. See VA Form 21-526b (October 2013). A May 2014 rating decision denied entitlement to a rating in excess of 10 percent for each lower extremity. This appeal arises from the Veteran’s disagreement with that decision. The Veteran contends that his bilateral lower extremity disability warrants a higher rating, and argues that a 20 percent rating for each extremity is warranted based on his limited ability to walk due to pain. See NOD (June 2015). At his April 2020 Board hearing, the Veteran requested re-examination of his lower extremities’ radiculopathy disability. The question in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 20 percent or higher for either lower extremity. The Board concludes that (1) from April 1, 2014, the Veteran’s symptoms caused the level of impairment required for a disability rating of 20 percent rating, but not higher; and (2) prior to April 1, 2014, his symptoms did not more closely reflect the criteria for a rating in excess of 10 percent for radiculopathy of either lower extremity. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. Radiculopathy is not specifically listed in the rating schedule; therefore, it is rated analogous to paralysis of the sciatic nerve, which is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). 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). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. Regarding impairment of motor functions, the reports of VA examinations for peripheral nerves conditions dated in April 2014 and June 2015 show that the Veteran has an abnormal, antalgic gait and uses a cane. Additionally, the Veteran reports that lower extremity pain limits his ability to walk. Regarding trophic changes, the reports of VA examinations for peripheral nerves conditions dated in April 2014 and June 2015 show that the Veteran has no trophic changes of the lower extremities. Additionally, the Veteran has reported no symptoms of trophic changes of the lower extremities. Regarding sensory disturbance, the reports of VA examinations for peripheral nerves conditions dated in April 2014 and June 2015 show that the Veteran had decreased sensation, bilaterally, in the feet and toes, which was indicated to be involved with the “L5” vertebrae of the lower lumbar spine. A report of VA examination for back conditions dated in October 2015 shows decreased sensation, bilaterally, from the Veteran’s thighs to feet. Regarding loss of reflexes, the reports of VA examinations for peripheral nerves conditions dated in April 2014 and June 2015 show that the Veteran had normal deep tendon reflexes of the lower extremities. A report of VA examination for back conditions dated in October 2015 shows that deep tendon reflexes were absent in the lower extremities. Regarding pain, a report of VA examination for peripheral nerves conditions dated in April 2014 shows that the Veteran reported that the frequency and intensity of his pain was radiating further down the left leg than before. The examiner noted constant lower extremity pain, which is mild in the RLE and moderate in the LLE. A report of VA examination for peripheral nerves conditions dated in June 2015 shows constant lower extremity pain, which is mild and bilateral. That examination report also shows mild paresthesias and/or dysesthesias, bilaterally. A report of VA examination for back conditions dated in October 2015 shows constant lower extremity pain, which is moderate and bilateral. Regarding muscle atrophy, the reports of VA examinations for peripheral nerves conditions dated in April 2014 and June 2015 show that the Veteran has no muscle atrophy of the lower extremities. Additionally, the Veteran has reported no symptoms of muscle atrophy of the lower extremities. Regarding complete paralysis, the reports of VA examinations for peripheral nerves conditions dated in April 2014 and June 2015 show, at worst, only incomplete paralysis. Additionally, the Veteran has reported no symptoms of complete paralysis, nor any indication that his foot dangles and drops, that there is no active movement possible of the muscles below the knee, or that flexion of his knees is weakened or lost. Based on the above, the Board finds that, as of April 1, 2014, the disability is primarily manifest by constant pain, impairment of motor functions, sensory disturbance, and loss of reflexes. However, prior to April 1, 2014, the Veteran’s disability was primarily manifest by intermittent pain and impairment of motor functions. Notably, the April 2014 examination was the first evidence of decreased sensation and constant pain in Veteran’s the lower extremities. Additionally, the report of examination in April 2014 shows that the Veteran reported that the frequency and intensity of his pain was now radiating further down the left leg than before. Although the examiner noted moderate pain in the LLE and mild pain in the RLE, both were noted as constant. Further, motor impairment was shown by the Veteran’s use of a cane and objective notations of an abnormal, antalgic gait throughout the appeal period. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, muscle atrophy, or complete paralysis. Such symptoms, indicative of more severe impairment, were neither subjectively reported nor objectively shown. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis prior to April 1, 2014, and moderate incomplete paralysis thereafter. Regarding a separate or higher rating under a different Diagnostic Code, entitlement to service connection for neurological impairment associated with any other peripheral nerves, claimed as diabetic peripheral neuropathy, is discussed in the Remand portion of this decision. Finally, the Veteran’s June 2015 notice of disagreement appealed the 10 percent rating assigned and sought a 20 percent rating for bilateral lower extremity radiculopathy. The Board acknowledges the holding of the United States Court of Appeals for Veterans Claims (Court) that a claimant may limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law. AB v. Brown, 6 Vet. App. 35, 39 (1993). Here, because the Veteran limited his appeal to the 20 percent rating for bilateral lower extremity radiculopathy, the appeal has been fully satisfied for that period of the appeal from April 1, 2014. In conclusion, the Board finds that the preponderance of the evidence supports the assignment of a 20 percent rating for LLE and RLE radiculopathy, but not higher, from April 1, 2014, but not earlier. In denying a rating higher than 10 percent prior to April 1, 2014, and higher than 20 percent thereafter, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as post-traumatic stress disorder (PTSD) and depressive disorder, is remanded. The Veteran contends that during his service in Thailand, he transported mail between Korat Royal Thai Air Base (RTAB) and Bangkok, which caused a fear of hostile military/terrorist activity. See NOD (January 2015). The Veteran also contends that his psychiatric disorder is secondary to his service-connected degenerative joint and disc disease of the lumbar spine (herein after back disability). See Hearing Transcript (April 2020). The Board finds that the VA medical opinions are inadequate for adjudicative purposes, as explained below. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An adequate medical opinion must be based on an accurate factual premise and consideration of a veteran’s prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion “must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions.” Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“most of the probative value of a medical opinion comes from its reasoning”). In sum, an adequate medical examination report or opinion must “sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.” Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). First, the report of VA examination for mental disorders dated in August 2013 shows that diagnoses for “Depressive Disorder NOS” (first diagnosis) and “Personality Disorder NOS” (second diagnosis). The associated medical opinion indicates that the Veteran does not have a current mental condition that is related to or incurred during military service, and that his dependency and depressive reactions are characteristic features of personality disorder. However, the examiner noted that the Veteran’s service treatment records (STRs) show impressions of depressive and personality disorders, but provided no reasoning or analysis to support the conclusion that the Veteran’s primary psychiatric disorder, depressive disorder, was not related to the impressions of depressive disorder shown in STRs. Additionally, the examiner provided no reasoning or analysis to support the conclusion that the secondary psychiatric disorder was the cause of the primary psychiatric disorder. Second, the report of VA examination for PTSD dated in March 2014 shows that the Veteran’s symptoms does not meet the criteria for a diagnosis of PTSD under Diagnostic and Statistical Manual of Mental Disorders, 5th edition (DMS-V). However, the report does not provide any indication of which diagnostic criteria were not met; or address whether the Veteran met the criteria for PTSD at any time during the appeal period given that VA treatment records reflect findings for PTSD in July 2007 and October 2012. Further, the examination report appears to reject the Veteran’s history of service in Thailand, to include as a security policeman, as a stressor event without explanation. 38 C.F.R. § 3.303(a). Notably, STRs show that the Veteran had good performance reviews, and no psychiatric complaints, prior to his assignment at Korat RTAB as a security policeman in August 1971. STRs reflect, in October 1971, just two months after the Veteran’s assignment to Korat RTAB, he became “quite nervous” while carrying a firearm, and the attending physician opined that he had “no overt character or behavioral disorders.” That attending physician opined that the Veteran’s “psychological status would improve” by cross-training into a new career field and recommended a physical profile due to the Veteran’s “phobia for carrying small firearms.” The Board also finds that the June 2020 private medical opinion is inadequate for adjudicative purposes. The opinion that the Veteran has depression and anxiety secondary to service-connected disability is not fully supported by a complete rationale. It is noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Also, “[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Board further finds that there are potentially outstanding, relevant records that should be requested while the claim is on remand. 38 C.F.R. § 3.159(c). VA treatment records show that the Veteran was hospitalized at Three Rivers Behavioral Health from September 13, 2019 to September 18, 2019 for suicidal ideations. Although records from the day of admission and day of discharge are associated with his VA treatment records, the records of the treatment provided in between admission and discharge appear to be outstanding. Therefore, remand is required to ensure that VA has met its duty to assist. 38 C.F.R. § 3.159(c); Barr, supra. 2. Entitlement to service connection for LLE diabetic peripheral neuropathy is remanded. 3. Entitlement to service connection for RLE diabetic peripheral neuropathy is remanded. Issues 2-3: The Veteran contends that service connection is warranted because his VA primary provider advised him that his peripheral neuropathy was secondary to his service-connected diabetes mellitus. See NOD (December 2016). As an initial matter, the Board finds that, despite the RO’s determination, the Veteran’s radiculopathy of the lower extremities, associated with his service-connected back disability, is manifested by symptoms separate than those shown as due to his peripheral neuropathy of the feet and toes. Regarding the Veteran’s feet and toes, radiculopathy of the lower extremities from the Veteran’s back disability involves his sciatic nerve and is shown to cause decreased sensation in his bilateral feet and toes. However, the evidence also shows that the Veteran experiences constant pain and numbness in his feet. Additionally, the Board finds that there are conflicting opinions regarding the etiology of Veteran’s complaints of constant pain and numbness in his feet. The June 2015 VA examiner diagnosed vascular disease, while the April 2016 VA examiner diagnosed diabetic peripheral neuropathy in the sciatic and femoral nerves. Additionally, an attending VA clinician in January 2018 discussed vascular, neurological, and dermatology results and assessed diabetes mellitus with peripheral neuropathy as the cause of the Veteran’s bilateral foot pain. However, none of the opinions were supported by any analysis or reasoning and thus, remand is required to obtain an adequate opinion. Further, there are outstanding VA treatment records.VA treatment records show that the Veteran underwent electromyography (EMG) testing in May 2017, but the results, to include a clinician’s impression, are not included. Finally, the Board notes that the Veteran failed to report for his previously scheduled VA exam in these matters. During his Board hearing, the Veteran indicated that this was because he was given confusing information from VA personnel as to how to locate the facility and ended up getting lost. The Board finds that he has reported good cause for missing the VA examination and, therefore, he should be given another opportunity to present for examination. See 38 C.F.R. § 3.655. Therefore, remand is required to ensure that VA has met its duty to assist. 38 C.F.R. § 3.159(c)(4); Barr, supra. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. The issue of TDIU is inextricably intertwined with the service connection claims remanded herein. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2019 to the Present]. Also, associate with the claims file, the results of EMG testing performed in May 2017, to include any clinician’s interpretation of the results. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms of mental disorder since service discharge to include Three Rivers Behavioral Health. Make two requests for the authorized records from all identified sources unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of each mental disorder shown during this appeal period to include any posttraumatic stress disorder (PTSD). Indicate clearly and expressly for the examiner whether VA concedes the alleged stressor of fear of hostile military activity while serving in Thailand. (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met, or not met, and opine whether it is at least as likely as not related to a verified in-service stressor. (b.) If the Veteran is diagnosed with a personality disorder and any other mental disorder, such as, PTSD or depressive disorder - The examiner must opine whether the mental disorder was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. (c.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include to include history of work with the military police in Thailand during the Vietnam war. (d.) Whether it is at least as likely as not that any diagnosed mental disorder, other than personality disorder, is (1) proximately due to service-connected disability or (2) aggravated beyond its natural progression by service-connected disability. Consider the Veteran’s report that he had mental disability caused or aggravated by his service-connected back disability. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral peripheral neuropathy of the lower extremities is at least as likely as not (1) proximately due to service-connected diabetes mellitus, or (2) aggravated beyond its natural progression by service-connected diabetes mellitus. To the extent feasible, distinguish those symptoms attributable to lower extremity peripheral neuropathy from those associated with service-connected radiculopathy of the lower extremities. 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thaddaeus J. Cox, 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.