Citation Nr: 21009947 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-32 592 DATE: February 23, 2021 ORDER For the initial rating period prior to May 22, 2019, a 10 percent rating, but no higher, for right lower extremity mononeuropathy is granted. For the rating period beginning May 22, 2019, a rating of 20 percent, but no higher, for right lower extremity mononeuropathy is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities is remanded. FINDINGS OF FACT 1. For the initial rating period prior to May 22, 2019, the Veteran’s right lower extremity mononeuropathy was manifested by no more than mild incomplete paralysis. 2. Beginning May 22, 2019, the Veteran’s right lower extremity mononeuropathy was manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. For the initial rating period prior to May 22, 2019, the criteria for a disability rating of 10 percent, but no higher, for right lower extremity mononeuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2020). 2. For the rating period beginning May 22, 2019, the criteria for a disability rating of 20 percent, but no higher, for right lower extremity mononeuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2002 to July 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for right lower extremity mononeuropathy and assigned a noncompensable rating. The Board previously remanded the claim in April 2019 to provide the Veteran a VA examination, to include an electromyographic (EMG) nerve test at the discretion of the VA examiner. Pursuant to the remand, a VA examination was obtained in May 2019; however, no EMG nerve test was completed. The examiner, and his accompanying medical report, are presumed competent and adequate, and thus the Board relies on the decision of the examiner not to provide an EMG nerve test to indicate it was not necessary. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). As such, the Board finds substantial compliance with its February 2019 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The Board also notes that the April 2019 Board decision remanded the claims for (1) entitlement to a compensable evaluation for linear scars from head to toe; (2) an increased rating in excess of 10 percent for residuals of pilonidal cystectomy; and (3) entitlement to an effective date prior to July 20, 2013 for the grant of service connection for linear scars from head to toe. While the case was in remand status, the Veteran withdrew these claims. See May 2020 correspondence. Accordingly, these issues are no longer on appeal and the Board does not have jurisdiction over them. Initial Matter The Veteran, through his attorney, argues that the May 2019 VA compensation examination was inadequate as it was based on an incorrect factual premise; that under Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009), the Veteran should have been evaluated for right lower extremity radiculopathy in addition to his right lower extremity mononeuropathy as the Board has a responsibility to address potential claims raised by the evidence; and, the attorney requested the Board follow through to completion as it pertains to the Veteran’s service connected back “which is currently on appeal.” See May 2020 Supplemental Statement of the Case Response. The Board will address these in turn. First, the attorney argues that the May 2019 VA examiner’s reliance on the incorrect fact that he was not service connected for DJD renders it inadequate, and due to said reliance, he did not evaluate the Veteran’s low back disability and associated radiculopathy. However, the Board finds that the DJD was irrelevant to the issue on appeal, as the disability is related not to the DJD, but the pilonidal cyst removal. Furthermore, the attorney’s argument does not present evidence of how the incorrect factual premise impacted the probative value of the rest of the examiner’s report, especially in light of the fact that the DJD is not on appeal and is unrelated to the issue on appeal. In the same vein, Clemons stands for the proposition that the scope of a claim is determined by the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim. The Board notes there is no issue as to the diagnosis of the disability on appeal. The Veteran was granted service connection for right lower extremity mononeuropathy as related to his pilonidal cyst surgery and impacting his external cutaneous nerve of the thigh; such was confirmed by the May 2019 VA examiner. See October 2013 VA compensation examination. Furthermore, where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. Mittleider v. West, 11 Vet. App. 181 (1998). However, the examiner in the May 2019 VA compensation examination stated that the findings within his report were limited to those of the service-connected right lower extremity mononeuropathy and did not evaluate the non-service connected right lower extremity radiculopathy. Finally, the DJD of the low back is not the issue on appeal. Service connection for DJD was granted in an April 2018 Board decision; that Board decision did not address radiculopathy and the Veteran did not appeal this decision. As such, the DJD disability is not implicated in this appeal and is not within the purview of the Board. The Board encourages the Veteran to file a new claim if he seeks to have VA address his DJD of the lumbar spine rating or any associated neurological manifestations. Laws and Regulations Pertinent to Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Right Lower Extremity Mononeuropathy The Veteran contends that his right lower extremity mononeuropathy should be afforded a compensable rating. The Veteran’s disability is currently rated as noncompensable under Diagnostic Code 8520. Under DC 8520, an 80 percent disability rating is assigned for complete paralysis of the sciatic nerve, demonstrated by foot drop, no active movement possible of the muscles below the knee, and knee flexion that is weakened or (very rarely) lost. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as “a degree of lost or impaired function substantially less than the type picture for complete paralysis given.” A 60 percent disability rating is assigned for severe, incomplete paralysis, with marked muscular atrophy; a 40 percent disability rating is assigned for moderately severe, incomplete paralysis; a 20 percent disability rating is assigned for moderate, incomplete paralysis; and a 10 percent disability rating is assigned for mild, incomplete paralysis. 38 C.F.R. § 4.124a, DC 8520. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.”  Sellers v. Wilkie, 30 Vet. App. 157 (2018) (“DC 8520 does not define ‘mild,’ ‘moderate,’ ‘moderately severe,’ or ‘severe,’ or generally associate those terms with specific symptoms”).  It should also be noted that use of terminology such as “mild” and “moderate” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.”  38 C.F.R. § 4.6.  Based on review of the evidence, the Board finds that for the period on appeal prior to May 22, 2019, a 10 percent rating for the Veteran’s right lower extremity mononeuropathy is warranted. Moreover, beginning May 22, 2019, the evidence is in equipoise as to whether a 20 percent rating for the Veteran’s right lower extremity mononeuropathy is approximated. Turning to the evidence, the Veteran was seen in November 2011 with complaints of pain radiating into his right lower extremity, which was made worse by walking. See November 2011 VA Treatment Record. In May 2012, the Veteran reported pain, described as dull and aching pain, radiating into the right buttock and posterior leg, which continued down to his foot, which was aggravated by walking and sitting for long periods and relieved by stretching. See May 2012 VA Treatment Record. The Veteran was provided a VA compensation examination in October 2013 addressing his peripheral nerves. The Veteran reported that he had tingling mainly on the outer and back side of his right thigh. The examiner noted decreased sensory on upper anterior thigh on the right and posterior and outer thigh, no muscle atrophy, and normal gait. The examiner diagnosed the Veteran with right lower extremity mononeuropathy and found “mild” incomplete paralysis of the external cutaneous nerve of the thigh. See October 2013 VA examination and report. In January 2015, the Veteran complained of burning pain down his right leg. See January 2015 VA Treatment Record. In May 2019, the Veteran sent a message to his VA primary care physician stating that his neuropathy had gotten worse. See May 2019 Email to Primary Care Physician. Another VA compensation examination was conducted in May 2019. The examiner noted that he was service connected for cutaneous femoral nerve damage from his pilonidal cyst, which would be expected to be localized to the thigh and buttock area, and thus his findings reflected what the Veteran described as occurring in that area, but not in the lower leg and foot where a separate the previously determined non-service connected etiology of right radiculopathy and degenerative spine disease would be pathophysiological responsible. The Veteran reported pain and tingling traveling to the posterior and outer thigh. On examination, the examiner noted sensory loss in the distribution of the right femoral cutaneous nerves, to include sensory loss in the region of his surgical scar; normal gait; and hypoactive deep tendon reflexes. The examiner indicated there was “mild” incomplete paralysis of the external cutaneous nerve of the thigh that manifested in moderate constant pain, no intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. No EMG test was conducted. In June 2019, the Veteran reported more persistent radiation down his posterolateral thigh, which he described as tingling and burning. Based on the evidence of record, both lay and medical, the Board finds that for the rating period prior to May 22, 2019, the Veteran’s right lower extremity mononeuropathy symptoms warrant a 10 percent rating. This is based on evidence of right lower extremity mononeuropathy symptoms as reflected in the October 2013 VA compensation examination, which found mild incomplete paralysis. Additionally, the Veteran experienced an aching, dull pain radiating into the right thigh as indicated in the May 2012 VA treatment record. Although the severity of the symptoms were not noted in terms of mild, moderate, moderately severe, or severe as set forth in the rating criteria, the Board recognizes that the Veteran’s radicular symptoms waxed and waned, as reflected in the treatment records and VA examinations. As such, a 10 percent rating for the appeal period prior to May 22, 2019 is warranted. 38 C.F.R. § 4.124a, DC 8520. A rating in excess of 10 percent for the period prior to May 22, 2019 is not approximated. The Veteran reported the pain was an aching, dull pain. Additionally, there is no evidence that the right thigh pain or numbness escalated beyond mild or were more sensory. Further, the Board finds that for the rating period beginning May 22, 2019, a rating of 20 percent, but no higher, is warranted. From May 22, 2019, the 20 percent rating is supported by the May 2019 VA compensation examination which, while finding mild incomplete paralysis, noted moderate constant pain, in addition to functional limitations with standing or sitting for longer than a few minutes. Furthermore, the Veteran contacted his VA physician stating that his pain had gotten worse. Additionally, the Veteran noted in a VA treatment record that his pain had become more persistent. As such, for the rating period on appeal from March 22, 2019, a rating of 20 percent, but no higher, is warranted. Id. A higher rating than 20 percent under DC 8520 for right lower extremity mononeuropathy is not warranted as the evidence does not indicate that the Veteran’s symptoms were manifested by more than moderate incomplete paralysis at any time during the appeal period. While the Veteran stated his symptoms became more persistent and severe, there is absent evidence his pain, numbness, or paresthesias in the affected region was beyond mild or moderate, impacting the Veteran’s ambulation, or was any more than sensory. Id. As such, a 20 percent rating, but no higher, for right lower extremity mononeuropathy is warranted. The Board notes that neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND The Board also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. In the May 2019 VA compensation examination, the Veteran stated that he was employed as a corporate recruiter. However, a September 2020 VA treatment record stated “unemployed - recruiter.” See September 2020 VA treatment record. On remand, a VA Form 21-8940 should be requested from the Veteran. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he submit a VA Form 21-8940, Application for TDIU. The Veteran should include all employment and education obtained. 2. After any additional development necessary has been completed, readjudicate the claim on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, 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.