Citation Nr: 21012946 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-33 327 DATE: March 8, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for tinnitus is dismissed. Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral syndrome is dismissed. Entitlement to a disability rating in excess of 10 percent for left knee patellofemoral syndrome is dismissed. Entitlement to a disability rating in excess of 10 percent for lumbar spine strain is dismissed Entitlement to a compensable disability rating for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. In October 2020 correspondence, prior to promulgation of a decision by the Board, the Veteran withdrew his claims for a disability rating in excess of 10 percent for tinnitus; a disability rating in excess of 10 percent for right knee patellofemoral syndrome; a disability rating in excess of 10 percent for left knee patellofemoral syndrome; and disability rating in excess of 10 percent for lumbar spine strain. 2. At worst, left lower extremity radiculopathy does not manifest as mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran for the issues of a disability rating in excess of 10 percent for tinnitus; a disability rating in excess of 10 percent for right knee patellofemoral syndrome; a disability rating in excess of 10 percent for left knee patellofemoral syndrome; and disability rating in excess of 10 percent for lumbar spine strain have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2019). 2. The criteria for a compensable disability rating for left lower extremity radiculopathy have not been met. 38 U.S.C. § § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.59, 4.124a, Diagnostic Codes 8599-8520 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from September 2005 to April 2011 including service in Iraq. He was awarded the Combat Action Badge. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In May 2018, the Board remanded the claims for further development of the evidence. Dismissals of Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative and must be in writing, except for appeals withdrawn on the record at a hearing. 38 C.F.R. § 20.204. In written correspondence of October 2020, the Veteran withdrew his appeals of entitlement to a disability rating in excess of 10 percent for tinnitus; a disability rating in excess of 10 percent for right knee patellofemoral syndrome; a disability rating in excess of 10 percent for left knee patellofemoral syndrome; and disability rating in excess of 10 percent for lumbar spine strain have been met. Withdrawal of these issues was explicit, unambiguous, and made with full understanding of the consequences of such action. See Acree v. O’Rourke, 891 F. 3d 1009 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review the appeal for entitlement to a disability rating in excess of in excess of 10 percent for tinnitus; a disability rating in excess of 10 percent for right knee patellofemoral syndrome; a disability rating in excess of 10 percent for left knee patellofemoral syndrome; and disability rating in excess of 10 percent for lumbar spine strain, and the appeal of these four matters is dismissed. Competent Evidence Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection or an increased disability rating is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Increased Disability Rating—Left Lower Extremity Radiculopathy The Veteran contends that the noncompensable disability rating assigned to left lower radiculopathy does not contemplate the severity of his symptoms. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities.  38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO has evaluated the Veteran’s left lower extremity radiculopathy under 38 C.F.R. § 4124a, Diagnostic Codes 8599-8520. The hyphenated Diagnostic Code indicates that the Veteran’s left lower extremity radiculopathy is analogous to incomplete paralysis of the sciatic nerve. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis and neuralgia of that nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis, which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, Code 8520. Evidence and Analysis In April 2012, the Veteran was afforded a VA examination of the lumbar spine. A clinician reviewed the claims file; considered the Veteran’s accounts; and conducted an appropriate evaluation. The clinician noted that the Veteran had been diagnosed with lumbar muscle strain in 2007 following an improvised explosive device blast injury. The Veteran reported intermittent pain on both sides of the superior lower back but did not mention radiating pain. Testing for radiculopathy was evaluated by the clinician as moderate paresthesias or dysesthesias and moderate numbness at the left lower extremity without further explanation. The clinician did not report the involvement of sciatic nerve roots. The Veteran reported working as a wastewater system operator. In an April 2012 addendum, the clinician noted that the Veteran reported numbness and ants biting his left foot but there were no other findings of radiculopathy other than diminished bilateral patellar reflexes. The Veteran did not report numbness or tingling extending from the back, going down the left leg. There were no other sensory or motor findings. The clinician found that left lower extremity radiculopathy was not likely due to the lumbar spine because the straight leg test was negative and concluded that mild radiculopathy was likely related to the left knee. In September 2012, the RO granted service connection and assigned a noncompensable rating based on the VA examination and the addendum. In November 2014, VA received copies of the Veteran’s Social Security Administration (SSA) medical records. These records do not include any mention or reporting on the disabling effects of left lower extremity radiculopathy. The outcome of any adjudication is not shown. In May 2018, the Board remanded the claim to obtain a complete SSA file and to obtain a VA examination. A December 2019 SSA transmittal shows that the Veteran filed a claim for lower left extremity radiculopathy; mild traumatic brain injury; lumbar spine strain; right knee patellofemoral syndrome; and PTSD with alcohol abuse disorder. Based upon the associated medical records, the Veteran was determined to be disabled from May 1, 2017. The Veteran indicated that his disabilities affect his abilities to left, squat, bend, stand, sit, knee, climb stairs, remember, complete tasks, concentrate, follow instructions, and get along with others. The majority of the records address the cognitive and psychiatric manifestations of the Veteran’s overall SSA disability picture. In January 2020, the Veteran was afforded a VA examination. The clinician indicated that the Veteran had a history of left lower extremity radiculopathy that started in 2008 after a parachute accident. The Veteran endorsed that it was painful to walk a great deal. Also, the Veteran reported that he could not traverse stairs, run, or stand for extended periods—all due to pain. The Veteran had service connected lumbar spine and bilateral knee disabilities that impair mobility. However, following testing for radiculopathy, the clinician indicated left lower extremity radiculopathy did not manifest in any constant pain, any intermittent pain, any paresthesias and/or dysesthesias, or any numbness. Left lower extremity radiculopathy did not indicate any nerve root involvement. In July 2020. The Veteran’s representative submitted a letter. In pertinent part, the representative called attention to the April 2012 VA examination that noted moderate radiculopathy of the left lower extremity. The representative overlooked and did not address the addendum report that warrants greater weight because it explained in more detail the Veterans symptom reports, the clinician’s observations, and the clinician’s findings. As noted above, to receive a compensable disability, there would need to be a showing of mild incomplete paralysis of the left sciatic nerve. Such is not disclosed in the evidence of record. As noted above, the examiner in April 2012 assessed the left leg radiculopathy as mild and associated with the left knee and not the sciatic root, and the January 2020 examiner noted no left leg radiculopathy. Moreover, there was no evidence of constant pain (of any degree of any degree of severity) or intermittent pain (of any degree of severity). The Veteran’s representative posits that left lower extremity was moderate upon the April 2012 VA examination was corrected the addendum and warrants greater weight because of its detailed explanation. As such, the Veteran’s left lower extremity radiculopathy most nearly approximates a noncompensable rating based upon mild and later asymptomatic incomplete paralysis. The Board concurs with the two examiner’s assessment as mild or no symptoms associated with radiculopathy based on their clinical testing and attributes the reported mobility impairment to the lumbar spine and knee disabilities. Therefore, a compensable disability rating for service-connected left lower extremity radiculopathy must be denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.