Citation Nr: 21021715 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-32 742 DATE: April 13, 2021 ORDER An initial 30 percent evaluation of right lower extremity radiculopathy is granted. REMANDED Entitlement to a separate rating for left upper extremity radiculopathy associated with cervical spine arthritis/disc disease is remanded. Entitlement to a separate rating for right upper extremity radiculopathy associated with cervical spine arthritis/disc disease is remanded. FINDING OF FACT The probative evidence of record including the findings of a June 2012 VA examination and the Veteran’s and his spouse’s competent and credible testimony indicate that the Veteran’s symptoms due to service-connected radiculopathy of the right lower extremity more closely resemble incomplete severe paralysis. CONCLUSION OF LAW An initial rating of 30 percent for the Veteran’s right lower extremity radiculopathy is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code (DC) 8526. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1984 to April 2003. These matters are before the Board on appeal from August 2012 and September 2012 rating decisions. In May 2018, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. These matters were before the Board in July 2018 and were remanded for further development. An initial 30 percent evaluation of right lower extremity radiculopathy is granted. Legal Criteria Disability ratings are determined by applying the criteria set forth in the schedule of ratings. 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; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply, the higher evaluation is assigned if the disability “more closely approximates” the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability manifested with symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, if, considering all the evidence, the evidence supporting a positive finding and that supporting a negative finding are relatively balanced, the issue will be resolved in favor of the claimant (this is called “the benefit of the doubt”). 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3. In this case, the Veteran’s right lower extremity radiculopathy each currently rated as 10 percent disabling under DC 8526. Under DC 8526, a 40 percent rating is warranted for complete paralysis of the anterior crural nerve (femoral) resulting in paralysis of the quadriceps extensor muscles. Further, under DC 8526, incomplete paralysis of the anterior crural nerve (femoral) warrants a 30 percent rating if it is severe a 20 percent rating if it is moderate, or a 10 percent rating if it is mild. 38 C.F.R. § 4.124a, DC 8526. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). Factual Background At a July 2011 medical treatment, the conducting physician indicated that the Veteran displayed numbness and tingling in the right leg. At a September 2011 medical treatment, the conducting physician indicated that the Veteran has bilateral leg pains and occasional numbness into both anterior and posterior thighs, calves, and feet. The Veteran reported that these symptoms of numbness and pain into his legs have worsened or increased. At a June 2012 VA examination, the conducting physician indicated that the Veteran’s right lower extremity radiculopathy resulted in moderate pain, severe paresthesias and/or dysesthesias and severe numbness. The physician indicated that the Veteran had decreased sensation of the right thigh and knee. The Veteran occasionally required the use of a cane. In September 2012, a VA examiner provided an addendum opinion which indicated that the Veteran’s right lower extremity radiculopathy produced mild symptoms. A June 2014 medical treatment indicates that the Veteran had a 3-year history of numbness, tingling and burning pain in the feet and legs. At the Board hearing, the Veteran testified that his right leg pain is more severe than his right leg. The Veteran further testified that sitting for extended periods is uncomfortable. The Veteran testified that it is a constant 24 hour a day issue and he has difficulty sleeping at night. The Veteran indicated that he takes approximately 85 milligrams of amitriptyline daily to help mask the nerve pain. The Veteran also indicated that he must take gabapentin when the pain is especially bad. The Veteran testified that he has difficulty with mobility and typically must hold onto something or use a cane. The Veteran’s wife testified that the Veteran is a fall risk and they have had to insert rails in the shower to prevent him from falling. Analysis The Board finds that during the period on appeal, the Veteran’s symptoms due to his service-connected radiculopathy of the right lower extremity more closely resemble incomplete severe paralysis and thus an initial 30 percent rating is warranted. The Board finds that the results of the June 2012 VA examination indicate that the Veteran’s radiculopathy of the right lower extremity produces symptoms of severe paresthesias and/or dysesthesias and severe numbness. The examination results also indicated that the Veteran had decreased sensation of the right thigh and knee and required the occasional use of a cane. While the June 2012 VA examiner indicated that the Veteran’s pain was only moderate, the Board finds both the Veteran and his wife to be competent and credible to describe the Veteran’s symptoms of constant, severe pain and accordingly assigns their testimony significant probative value. Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, the evidence suggests that the Veteran requires the use of several pain medications to handle his right leg pain. While the VA examiner provided an addendum opinion that the Veteran’s right lower extremity radiculopathy produced only mild symptoms, the Board notes that they did not support their opinion with a rationale and accordingly does not assign it any probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). What remains for consideration is whether the Veteran is entitled to a still higher, 40 percent rating for his service-connected radiculopathy of the right lower extremity. The evidence does not support complete paralysis of quadriceps extensor muscle because the examiners during the period on appeal show that he is able to extend his knee. Therefore, absent evidence showing complete paralysis of quadriceps extensor muscle, a rating higher than 30 percent for radiculopathy of the femoral nerve of the right lower extremity is not warranted under DC 8526. REASONS FOR REMAND 1. Entitlement to a separate rating for left upper extremity radiculopathy associated with cervical spine arthritis/disc disease is remanded. 2. Entitlement to a separate rating for right upper extremity radiculopathy associated with cervical spine arthritis/disc disease is remanded. Despite the additional and regrettable delay, another remand is required because there was not substantial compliance with the Board’s July 2018 remand directives to provide the Veteran with the requested VA examination. See Stegall v. West, 11 Vet. App. 268 (1998). Rather it appears that the VA examination was cancelled because the VA was unable to locate a specialist to conduct the examination. See March 2020 correspondence. Accordingly, another remand is necessary. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Schedule the Veteran for an examination by a neurologist or physiatrist to evaluate whether the Veteran has additional symptoms (for which he is not already receiving compensation) associated with cervical radiculopathy (noted on the October 2013 VA examination report). The most recent VA examinations are from March 2012 and October 2013, and that the Veteran has since been diagnosed with another neurological disorder (small fiber neuropathy) for which service connection was denied in an April 2015 rating decision. The examiner should fully describe the disabilities and report all signs and symptoms necessary for evaluation under any pertinent diagnostic codes for the left and right upper extremity radiculopathy (if warranted). In doing so, the examiner MUST address all reported left and right upper extremity neurological symptoms and state whether they are manifestations of radiculopathy or otherwise related to the Veteran’s service or service-connected disabilities. [CONTINUED ON NEXT PAGE]   A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.