Citation Nr: 21007805 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-06 001 DATE: February 10, 2021 ORDER An initial rating in excess of 10 percent prior to January 16, 2020, and in excess of 20 percent thereafter for left lower extremity (LLE) radiculopathy is denied. REMANDED Entitlement to a rating in excess of 20 percent for lumbar strain is remanded. Entitlement to a rating in excess of 10 percent for limitation of motion of the thoracic spine is remanded. FINDINGS OF FACT 1. For the appeal period prior to January 16, 2020, the Veteran’s LLE radiculopathy was manifested by no more than mild incomplete paralysis of the sciatic nerve. 2. As of January 16, 2020, the Veteran’s LLE radiculopathy is manifested by no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent prior to January 16, 2020, and in excess of 20 percent for LLE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.120, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from April 1997 to April 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2012 by a Department of Veterans Affairs (VA) Regional Office (RO). As relevant to the claims addressed herein, in March 2016, the Board denied increased ratings for the Veteran’s lumbar and thoracic spine disabilities and remanded the claim for a higher initial rating for LLE radiculopathy. The Veteran appealed the Board’s denial of such increased rating claims to the United States Court of Appeals for Veterans Claims (Court). In January 2017, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated and remanded the Board’s March 2016 decision in such regard. In February 2018, the Board denied an initial rating in excess of 10 percent for LLE radiculopathy and remanded the claims for increased ratings of the lumbar and thoracic spine disabilities. The Veteran appealed the Board’s denial of an increased rating for LLE radiculopathy to the Court. Thereafter, in November 2018, the Court granted a JMPR that vacated and remanded the Board’s February 2018 decision to the extent that it denied an initial rating in excess of 10 percent for LLE radiculopathy. In July 2019, all of the claims on appeal were remanded for additional development. While on remand, in an August 2020 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a 20 percent rating for LLE radiculopathy, effective January 16, 2020. Thus, as a 20 percent rating is not the maximum rating available for such disability, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). Further, such has been characterized to reflect that a staged rating is in effect. Fenderson v. West, 12 Vet. App. 119 (1999). The appeal now returns for further appellate review. The Board notes that, while additional evidence consisting of updated VA treatment records was received after the issuance of the most recent supplemental statement of the case in August 2020, such are irrelevant or include findings duplicative to those previously considered by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. § 20.1305(c). Thus, there is no prejudice to the Veteran in proceeding with an adjudication of his claims at the present time. Finally, in a November 6, 2020, letter, the Board granted an extension of time of 90 days for the Veteran and/or his representative to submit additional evidence or argument in support of the instant appeal. However, to date, no additional evidence or argument has been received. 1. Entitlement to an initial rating in excess of 10 percent prior to January 16, 2020, and in excess of 20 percent thereafter for LLE radiculopathy. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found—a practice known as “staged” ratings. Fenderson, supra; Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board begins on August 5, 2011, the date service connection for LLE radiculopathy was awarded. The Veteran is in receipt of a 10 percent rating prior to January 16, 2020, and a 20 percent rating thereafter for such disability pursuant to DC 8520. Such DC addresses the sciatic nerve, which provides for a 10 percent rating where there is mild incomplete paralysis. A 20 percent rating where there is moderate incomplete paralysis. A 40 percent rating is for application where there is moderately severe incomplete paralysis. A 60 percent rating is warranted where there is severe incomplete paralysis with marked muscular atrophy. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The words “moderate” and “severe” are not defined in 38 C.F.R. §§ 4.120-4.124a. In applying the schedular criteria for rating peripheral nerve disabilities, the term “incomplete paralysis” 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. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. After a review of the record, the Board finds that a rating in excess of 10 percent prior to January 16, 2020, and in excess of 20 percent thereafter for LLE radiculopathy is not warranted. In this regard, a March 2012 treatment record noted the Veteran’s reports of infrequent pain sensation to his bilateral legs with numbness. He characterized his pain symptoms as burning, achy, sharp, and numbness. However, his muscle strength, sensation, and reflex tests of the LLE were normal. At a July 2012 examination, the Veteran had normal muscle strength and reflex tests, and decreased sensation in his left lower leg/ankle and foot/toes. The examiner noted his only symptoms were mild paresthesias and/or dysesthesias of the LLE and characterized the severity of his LLE radiculopathy as mild. Subsequent treatment records reveal that, in March 2014, the Veteran complained of pain and numbness radiating to his bilateral legs intermittently, which was greater on the right side. He also denied weakness. The clinician observed the Veteran moving all extremities, and indicated that he had 5/5 strength of his bilateral lower extremities (BLE) and his sensation was intact. A lumbar spine MRI from later that same month indicated that the Veteran had low back pain and radiculopathy greater in the LLE than in the right lower extremity. In October 2014, the Veteran continued to complain of pain and numbness radiating to his bilateral legs intermittently, which was greater on the right side. In April 2015, the Veteran reported that both of his legs had a burning sensation and occasionally a wet sensation. He also stated that his right lower limb occasionally felt as if it wanted to give way, and he had periodic occasional cramping or tingling in the right calf that fluctuated to his left side. He also felt the intensity of symptoms were about the same as they were when he had his March 2014 lumbar spine MRI. Upon physical examination, knee and ankle jerks could not be obtained and Babinski signs and clonus were absent from each lower limb. Motor testing was intact in both lower limbs and sensibility to light touch was intact in his feet and ankles in all distributions. Later that same month on April 28, 2015, the clinician noted that the Veteran did not have much sensation in his upper legs anteriorly, but had more preserved sensation posteriorly. The Veteran stated that he felt that his left leg was weak, but he had more pain in his right leg. He also indicated that he had tingling and numbness in his feet with sitting for longer periods of time. Upon physical examination, the clinician noted left over right thigh atrophy and the Veteran’s rapid alternating movements of the BLE were intact. The Veteran also had 4/5 LLE muscle strength throughout and absent reflexes in his patella and achilles. Sensation was decreased in his anterior thigh with increased sensation laterally and full sensation to his left posterior thigh. In August 2015, the Veteran was seen for an electromyography (EMG)/nerve conduction study based on his recent LLE weakness. Reflexes were absent at the knees and ankles, and lower extremity strength was decreased. However, such study was normal and there was no evidence of peripheral nerve injury or dysfunction. Thereafter, in December 2015, the Veteran complained of back pain that was radiating only to his right leg. The clinician noted that the Veteran’s BLE motor was 5/5. In April 2016, the Veteran continued to complain of back pain radiating primarily to his right hip, groin, and anterior thigh. He also stated that he had some radiation to his left hip, but no BLE numbness or weakness. The clinician observed that the Veteran had normal reflexes of his bilateral patella and ankle, and 5/5 motor testing of his BLE. In May 2016, the clinician noted that the Veteran had 5/5 motor testing of his BLE and his sensation was intact. He also complained of pain radiating to his bilateral legs intermittently, but such was greater on the right. In June 2016, the Veteran underwent another VA examination. At such time, he reported inner thigh shooting pain. The examiner noted the Veteran’s LLE symptoms included mild intermittent pain, paresthesias and/or dysesthesias, and numbness. He had normal muscle strength tests, hypoactive reflexes of his left knee and ankle, and a normal sensory examination. The examiner found that the Veteran had mild incomplete paralysis of the left sciatic nerve. Subsequent treatment records reveal that, in November 2016, the Veteran’s extremities were within normal limits, moved against gravity, and he had normal pulses, grip, and pedal push. In December 2018, the Veteran denied increased numbness/tingling down his legs and he had normal extremities and reflexes. In February 2019, the Veteran denied radiation numbness, tingling, pain, and weakness. His LLE muscle strength tests were normal except left hip flexion, which was 4/5. The Veteran’s LLE reflexes were also hypoactive. In July 2019, the Veteran showed no knee or ankle jerks and Babinski signs was absent from each lower limb. However, motor testing in both lower limbs was intact, as was his sensibility to light touch of his feet and ankles in all distributions. The Veteran was afforded another VA examination on January 16, 2020. At such time, he had normal muscle strength and reflex tests, but had decreased sensation in his left lower leg/ankle. His LLE symptoms included moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner found that the Veteran’s LLE radiculopathy had progressed to moderate incomplete paralysis of the sciatic nerve, manifested by LLE weakness with decreased sensation and the absence of ankle reflexes. Based on the foregoing, the Board finds that an initial rating in excess of 10 percent prior to January 16, 2020, for the Veteran’s LLE radiculopathy is not warranted as such disability resulted in no more than mild incomplete paralysis of his sciatic nerve during such period. Furthermore, an initial rating in excess of 20 percent as of January 16, 2020, for LLE radiculopathy is likewise not warranted as such disability resulted in no more than moderate incomplete paralysis of the sciatic nerve as of such date. Specifically, the Veteran complained of only infrequent pain to his left leg in March 2012, March 2014, and October 2014, and his muscle strength, sensation, and reflex tests of the LLE were normal. Such tests were also normal during his July 2012 VA examination, with the exception of had decreased sensation in the left lower leg/ankle and foot/toes. Additionally, he only reported mild paresthesias and/or dysesthesias at such time. Thus, based on the foregoing, the examiner found that the severity of the Veteran’s LLE radiculopathy was no more than mild. The Board notes that, while on April 28, 2015, the clinician found that the Veteran had absent reflexes in his patella and achilles and left greater than right thigh atrophy, his LLE muscle strength was still 4/5 throughout and his rapid alternating movements of the BLE were intact. Additionally, an EMG in August 2015, which was conducted based on such symptoms, was normal and there was no evidence of peripheral nerve injury or dysfunction. Further, in December 2015, the Veteran complained of back pain radiating only to his right leg, and he had normal reflexes of his bilateral patella and ankle in April 2016. Moreover, the June 2016 VA examiner found that the Veteran had mild incomplete paralysis of the left sciatic nerve as he had mild intermittent pain, paresthesias and/or dysesthesias, and numbness of his LLE, and hypoactive reflexes of his left knee and ankle, and, in November 2016, his extremities were within normal limits, moved against gravity, and he had normal pulses, grip, and pedal push. Furthermore, in December 2018 and February 2019, the Veteran denied all relevant symptoms and objective tests were normal, with the exception of decreased strength at 4/5 in the left hip flexion and hypoactive reflexes at the latter examination. Finally, while he had no knee or ankle jerks and Babinski signs was absent from each lower limb, motor testing and sensation were intact in July 2019. However, upon examination on January 16, 2020, the examiner found that the Veteran’s LLE radiculopathy had progressed to moderate incomplete paralysis of the sciatic nerve, manifested by LLE weakness with decreased sensation and the absence of ankle reflexes, despite normal muscle strength and reflex tests. Therefore, based on the foregoing, the Board finds that the Veteran’s LLE radiculopathy affecting the sciatic nerve has been no more than mild in nature prior to January 16, 2020, based on subjective symptomatology and objective evidence of decreased sensation with intermittent impairment in reflexes and reduced muscle strength. However, the most probative evidence demonstrates that, despite the reported impairment in reflexes and muscle strength on various occasions, other objective testing reflects normal reflex, motor, and muscle testing throughout the appeal period. Thus, the Board finds that such impairment has been intermittent, at most, and therefore, the Veteran’s symptomatology on the whole has not more nearly approximated moderate incomplete paralysis of the sciatic nerve at any point during the appeal period prior to January 16, 2020. However, as of January 16, 2020, the date upon which a VA examination demonstrating that the Veteran’s LLE radiculopathy had progressed to moderate incomplete paralysis of the sciatic nerve, manifested by LLE weakness with decreased sensation and the absence of ankle reflexes, despite normal muscle strength and reflex tests, a 20 percent rating was assigned. However, as the evidence does not show that the Veteran’s LLE radiculopathy more nearly approximates moderately severe incomplete paralysis of the sciatic nerve, a higher initial rating as of such date is not warranted. In this regard, such disability resulted in subjective symptomatology and objective evidence of decreased sensation. Further, while the examiner also noted the presence of weakness and the absence of ankle reflexes, muscle strength and reflex tests were normal upon examination. Thus, absent more severe symptomatology resulting in a greater degree of impairment, an initial rating in excess of 20 percent for LLE radiculopathy as of January 16, 2020, is not warranted. The Board has considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran’s LLE radiculopathy; however, the Board finds that his symptomatology is stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative has raised any other issues nor have any other issues been reasonably raised by the record with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, the Board finds that an initial rating in excess of 10 percent prior to January 16, 2020, and in excess of 20 percent thereafter for the Veteran’s LLE radiculopathy is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s initial rating claim. Consequently, that doctrine is not applicable in the instant appeal, and such claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to a rating in excess of 20 percent for lumbar strain. 3. Entitlement to a rating in excess of 10 percent for limitation of motion of the thoracic spine. Pursuant to the July 2019 Remand, the Veteran underwent a VA examination in January 2020. At such time, the examiner noted that the Veteran had additional factors contributing to his back disability, including less movement than normal due to ankylosis. However, he also noted that the Veteran did not have ankylosis of the spine and range of motion measurements were provided for all planes. Thus, the Board finds that a remand is necessary to obtain an addendum opinion to reconcile such findings and clarify whether the Veteran has ankylosis of the spine. The matters are REMANDED for the following action: Return the record, to include a copy of this Remand, to the VA examiner who conducted the Veteran’s January 2020 back examination. If the January 2020 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a full review of the record, the examiner should reconcile his determination that the Veteran’s spinal disabilities result in less movement than normal due to ankylosis, with his later indication that he did not have ankylosis of the spine and the fact that range of motion measurements were provided for all planes. If the examiner finds that the Veteran does have ankylosis of the spine, he should report whether such is characterized as favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.