Citation Nr: 21011229 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-09 009 DATE: March 1, 2021 ORDER For the period of November 4, 2020, onward, a rating of 20 percent, but no higher, for right lower extremity radiculopathy (MEB Dx2) (claimed as lumbar radiculopathy, right lower extremity), under Diagnostic Code (DC) 8520, is granted. For the period of November 4, 2020, onward, a rating of 20 percent, but no higher, for left lower extremity radiculopathy (MEB Dx2) (claimed as lumbar radiculopathy, right lower extremity), under Diagnostic Code (DC) 8520, is granted. Prior to November 4, 2020, a rating in excess of 10 percent for right lower extremity radiculopathy (MEB Dx2) (claimed as lumbar radiculopathy, right lower extremity), is denied. Prior to November 4, 2020, a rating in excess of 10 percent for left lower extremity radiculopathy (MEB Dx2) (claimed as lumbar radiculopathy, right lower extremity), is denied. REMANDED Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period of November 4, 2020, onward, the competent and probative evidence shows that the Veteran’s right lower extremity radiculopathy manifested by moderate incomplete paralysis. 2. For the period prior to November 4, 2020, the competent and probative evidence shows that the Veteran’s right lower extremity radiculopathy manifested by mild incomplete paralysis. 3. For the period of November 4, 2020, onward, the competent and probative evidence shows that the Veteran’s left lower extremity radiculopathy manifested by moderate incomplete paralysis. 4. For the period prior to November 4, 2020, the competent and probative evidence shows that the Veteran’s left lower extremity radiculopathy manifested by mild incomplete paralysis. CONCLUSIONS OF LAW 1. For the period of November 4, 2020, onward, the criteria for a rating in excess of 20 percent, but no higher, for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a – Note (1), 4.124a, DC 8520. 2. For the period prior to November 4, 2020, the criteria for a rating in excess of 10 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a – Note (1), 4.124a, DC 8525. 3. For the period of November 4, 2020, onward, the criteria for a rating in excess of 20 percent, but no higher, for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a – Note (1), 4.124a, DC 8520. 4. For the period prior to November 4, 2020, the criteria for a rating in excess of 10 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a – Note (1), 4.124a, DC 8525. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2007 to January 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has previously been before the Board. In November 2019, the Board remanded the issues on appeal to update the Veteran’s VA treatment records and to schedule a VA examination to determine the Veteran’s current symptomatology related to his bilateral lower extremity radiculopathy. In December 2019 the Veteran was provided a VA examination. In October 2020 the Board remanded the issues on appeal because the November 2019 Board remand requested a specific examination of the Veteran’s bilateral lower extremity radiculopathy, but instead the Agency of Original Jurisdiction (AOJ) administered a general thoracolumbar examination including radiculopathy. Additionally, the issue of entitlement to a TDIU was raised by the record and the Board instructed the AOJ to develop the issue of a TDIU. In October 2020 the AOJ sent the Veteran the documentation to appropriately develop the issue of a TDIU. In November 2020, the Veteran was provided with a VA examination. The Board finds there has been substantial compliance with its prior remand directives. Increased Rating 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 percentages are based on the average impairment of earning capacity as a result of 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. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran’s lower extremities are rated under Diagnostic Code 8599-8521. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and 99. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that a condition of the peripheral nerves (Diagnostic Code 8599) is rated under the criteria for complete or incomplete paralysis of the sciatic nerve (Diagnostic Code 8520). The Veteran’s service-connected peripheral neuropathy has been rated by the RO under the provisions of Diagnostic Code 8520. Under this regulatory provision, an 80 percent rating is warranted for complete paralysis of the sciatic nerve in which the foot dangles and drops; there is no active movement possible of the muscles below the knee; and flexion of the knee is weakened or lost. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. A 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. The term “incomplete paralysis” indicates a degree of impaired function substantially less than the type of picture for “complete paralysis” given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. VA guidance states that moderate incomplete paralysis will likely be described by the Veteran and medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. For severe incomplete paralysis, in general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. The Court recently held in Miller v. Shulkin that, “[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level.” 28 Vet. App. 376, 380 (2017). Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Words such as “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The Board turns to a dictionary to define these terms. In this regard, moderate is generally defined as “tending toward the mean or average amount.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 798 (11th ed. 2003). Severe is generally defined as “of a great degree” or “serious.” Id. at 1140. Moderately severe, therefore, could be construed as falling beyond or above the mean or average amount while falling short of being a great degree or serious. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. A rating in excess of 10 percent for right lower extremity radiculopathy (MEB Dx2) (claimed as lumbar radiculopathy, right lower extremity). 2. A rating in excess of 10 percent for left lower extremity radiculopathy (MEB Dx2) (claimed as lumbar radiculopathy, right lower extremity). The Veteran contends that his bilateral lower extremity radiculopathy disability has gotten worse than the currently assigned rating would indicate. Additionally, the Veteran testified that he experiences numbness, tingling, shooting pain, and weakness, and his legs feel “rubbery.” See 8/27/2019 Hearing Transcript; see also 5/12/2020 SSOC.   The record shows that the Veteran is currently rated at 10 percent for radiculopathy of the bilateral lower extremities under DC 8525, with an effective date of January 28, 2014. After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that the Veteran’s lower extremity disabilities are manifested as moderate symptoms. Thus, with resolution of reasonable doubt in the Veteran’s favor, the Veteran’s lower extremity disabilities more closely approximated the criteria for moderate incomplete paralysis. However, DC 8525 provides for only a 10 percent rating for the same symptoms, so a rating under that DC would be less beneficial to the Veteran. Therefore, the Board will discuss DC 8520, as it is more beneficial to the Veteran, since the same symptoms warrant a rating of 20 percent as of November 4, 2020. For the period prior to November 4, 2020, the relevant evidence showed that the Veteran underwent a VA examination in February 2019. The examination showed that the Veteran had symptoms, such as mild bilateral lower extremity intermittent pain, paresthesias/dysesthesias, and numbness. The objective examination showed that the Veteran had normal strength, gait, sensation, and reflexes, except for 1+ hypoactive left ankle. Further, the Veteran had mild incomplete paralysis of the bilateral lower extremities and no atrophy or tropic changes. Finally, the examiner stated that there was no functional impairment. In December 2019 the Veteran underwent another VA examination, which showed that the Veteran had symptoms, such as mild constant radicular pain to his bilateral lower extremities. Additionally, the objective examination showed that the Veteran had normal strength, reflexes, and sensation. However, the Board remanded for another examination because the in November 2019 Board remand requested an examination of the Veteran’s bilateral lower extremity radiculopathy, instead the he was administered a general thoracolumbar examination including radiculopathy. The Veteran’s VA treatment records for the period prior to November 4, 2020, showed that the Veteran had diminished ankle reflexes and hip strength, and an abnormal straight leg raise test result. However, the treatment records for this period generally showed that the Veteran had normal strength, balance, gait, and sensation. See 10/27/2020 Medical Treatment Record – Government Facility, at pages 53, 60, 70, 223, and 749. For the period of November 4, 2020, onward, the relevant evidence showed that the Veteran underwent a VA examination in November 2020. The examination showed that the Veteran had symptoms, such as mild constant pain, paresthesias/dysesthesias, and numbness in his bilateral lower extremities. Additionally, he had moderate intermittent pain in his bilateral lower extremities. The objective examination showed that the Veteran had normal strength, gait, reflexes, sensation, and straight leg raise test results. Further, the Veteran had no atrophy and he reported numbness as functional impact. After review of the competent and probative evidence, the Board finds that for the period prior to November 4, 2020, a rating in excess of 10 percent for bilateral lower extremity radiculopathy is not warranted. During this period, the Veteran has not had worse than mild bilateral lower extremity intermittent pain, paresthesias/dysesthesias, and numbness. For the period of November 4, 2020, onward, a rating of 20 percent, but no higher, for radiculopathy of the bilateral lower extremities is warranted. During this period, the Veteran has not had worse than moderate intermittent pain in his bilateral lower extremities. A rating in excess of 20 percent is not warranted as the Veteran has had no worse than mild to moderate symptoms during the period on appeal. From November 4, 2020, onward, when viewed against the totality of the pertinent evidence, his symptoms are more nearly approximated by a rating of 20 percent. However, the record also showed that the Veteran had no atrophy and generally had normal strength, gait, reflexes, and sensation. REASONS FOR REMAND Entitlement to a TDIU. The issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 477. The matter of a TDIU was raised in connection with the Veteran’s claims in his October 2020 Appellate Brief. The October 2020 Board remand instructed the AOJ to provide the Veteran with a VA Form 21-8940 for the Veteran to submit employment information. Pursuant to the October 2020 remand, the AOJ sent the Veteran the VA form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). See 10/28/2020 Custom 5103 Notice. However, the evidence of record indicates that the Veteran did not submit the requested form or otherwise respond to the AOJ’s October 2020 correspondence. If the Veteran and his representative wish to pursue this claim, the Board encourages them to submit the requested form. The Board will allow the Veteran and his representative yet another opportunity to submit a completed VA form 21-8940 to pursue the claim of entitlement to a TDIU. The Board needs the Veteran to submit the requested form for the record to have the Veteran’s employment information to more precisely understand the nature of the Veteran’s employment during the appeal period. In remanding this claim, the Veteran is notified that the duty to assist is not a one-way street; a claimant is obligated to cooperate in the development of a pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In short, any further failure to submit the request information may result in the denial of the issues on appeal. The Veteran is also notified that pursuant to 38 C.F.R. § 3.158(a), when evidence requested in connection with a claim for increase is not furnished within 1 year after the date of the request, the claim is considered abandoned. 38 U.S.C. § 501; 38 C.F.R. § 3.158(a).   This matter is REMANDED for the following action: Provide the Veteran and his representative with VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), and advise the Veteran to complete and return the form to support his claim of entitlement to a TDIU. Inform the Veteran that the Board needs to have the record of the Veteran’s employment information (and any education and or training) to more precisely understand the nature of the Veteran’s employment during the appeal period. Additionally, inform the Veteran of the provisions of 38 C.F.R. § 3.158(a). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, 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.