Citation Nr: 21021941 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 10-44 192A DATE: April 14, 2021 ORDER Entitlement to a compensable evaluation for bilateral hearing loss is denied. Entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy for the period prior to November 9, 2020, and in excess of 60 percent thereafter, is denied. FINDINGS OF FACT 1. Bilateral hearing loss is manifested throughout the appeal period by no more than Level I hearing loss bilaterally. 2. For the period prior to November 9, 2020, the Veteran’s right lower extremity radiculopathy was not manifested by moderate incomplete paralysis of the external popliteal nerve (common peroneal). 3. From November 9, 2020, the Veteran right lower extremity radiculopathy had not been manifested by complete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an initial evaluation in excess of 10 percent for right lower extremity radiculopathy for the period prior to November 9, 2020, and in excess of 60 percent thereafter are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8599-8520, 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1981 to September 1995 and from December 2005 to August 2007. His awards and decorations include the Combat Infantryman Badge. The Veteran was scheduled to testify before the Board at a hearing in October 2019 in connection with the appeal for an increased evaluation for bilateral hearing loss. In an October 2019 communication, the Veteran asked to have the hearing cancelled and to have it rescheduled. Next, a hearing was scheduled for January 2021, for a virtual hearing. However, at the time of the scheduled hearing, the Veteran indicated that he wanted to cancel the hearing. Therefore, the Veteran’s hearing request is considered to have been withdrawn. In June 2019, the Board denied entitlement to an increased rating for right lower extremity radiculopathy; denied an initial rating higher than 50 percent for headaches; denied an initial rating higher than 70 percent for PTSD. The Board also granted service connection for left facial pain and swelling; a 10 percent rating, but no higher, for residuals of a traumatic brain injury (TBI) prior to August 23, 2009; a 70 percent rating, but no higher, for residuals of a TBI from August 24, 2009 to January 2, 2011; a 40 percent rating for residuals of a TBI from January 3, 2011 to June 27, 2011; a 70 percent rating for TBI from June 28, 2011 to January 28, 2019; and a 10 percent rating for TBI residuals beginning January 29, 2019. The Veteran appealed the June 2019 Board decision to the Court of Appeals for Veterans Claims (Court), resulting in a May 2020 Joint Motion for Partial Remand (JMPR) executed by the parties. Specifically, the Court issued a May 5, 2020 Order that vacated and remanded for compliance with the instructions of the JMPR, the portion of the Board’s June 2019 decision that denied an initial increased rating for right lower extremity radiculopathy. In so doing, the parties agreed that the Board’s June 2019 decision failed to provide adequate reasons and bases in denying a rating in excess of 10 percent for the Veteran’s right lower extremity radiculopathy. However, the Court did not disturb the favorable findings decided in the June 2019 Board decision, and the Veteran abandoned the claims of entitlement to an initial rating higher than 50 percent for headaches and an initial rating higher than 70 percent for PTSD. In October 2020, the Board remanded this case for additional development consistent with the JMPR. The matter has now returned to the Board for appellate review. As an initial matter, the Board observes that in December 2020, the Agency of Original Jurisdiction (AOJ) issued a rating decision and supplemental statement of the case (SSOC) granting an increase of the evaluation of right lower extremity radiculopathy from 10 percent disabling to 60 percent disabling from November 9, 2020. The issue remains in appellate status as the maximum schedular rating has not been assigned from the date of claim. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court also discussed the concept of the “staging” of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (applying the concept of staged ratings to instances in which entitlement to compensation has previously been established). 1. Entitlement to a compensable evaluation for bilateral hearing loss The Veteran’s service-connected bilateral hearing loss has been evaluated with a noncompensable rating throughout the appeal period under the provisions of Diagnostic Code 6100. See 38 C.F.R. § 4.85 (2018). In evaluating hearing loss under the schedular criteria, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86 (b). Turning to the record, the Veteran was afforded a VA examination in January 2012 to determine the severity of his bilateral hearing loss. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 15 15 15 40 LEFT N/A 5 5 15 50 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. The average decibel loss in the right ear is 21 and the average decibel loss in the left ear is 19. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment is I for both the right and left ear. See 38 C.F.R. § 4.86 (a). Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. The examiner also reported that Veteran’s bilateral hearing loss impacts the ordinary conditions of daily life. Specifically, the Veteran reported that he has difficulty understanding speech, particularly with noise. Veteran further reported that he was in the infantry and exposed to artillery, firefights, with some use of hearing protection. There was no occupational noise exposure reported. In August 2019, the Veteran was afforded another VA audiological examination in which pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 15 10 15 35 LEFT N/A 5 0 15 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The average decibel loss in the right ear is 19 and the average decibel loss in the left ear is 18. Entering the average pure tone thresholds and speech recognition abilities above into Table VI reveals the highest numeric designation of hearing impairment is I for both the right and left ear. See 38 C.F.R. § 4.86 (a). Entering the category designations for each ear into Table VII results in a noncompensable evaluation under Diagnostic Code 6100. The examiner reported that the impact of the Veteran’s bilateral hearing loss on the Veteran’s daily life is that he has difficulty understanding speech. The examiner further noted that the Veteran did not report any occupational or recreational noise exposure. The Board acknowledges the Veteran’s contentions that his service-connected bilateral hearing loss warrants a compensable evaluation. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran’s impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85 with respect to determining the severity of his service-connected hearing loss. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). The Board finds that there is no audiological evidence of record to support a compensable evaluation for the Veteran’s bilateral hearing loss. The preponderance of the evidence is against his claim for a higher evaluation. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (U.S. 1990). 2. Entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy for the period prior to November 9, 2020, and in excess of 60 percent thereafter The Veteran’s right lower extremity radiculopathy is rated as 10 percent disabling under DC 8599-8521 from September 1, 2007, and as 60 percent disabling under DC 8599-8520 from November 9, 2020. The Veteran contends that he is entitled to a higher evaluation for the entire period on appeal. For the period prior to November 9, 2020, this disability is rated under Diagnostic Code (DC) 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 disability rating assigned; the additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and “99.” 38 C.F.R. § 4.27. Therefore, in this instance, the Veteran’s right lower extremity radiculopathy was rated as analogous to paralysis of the external popliteal nerve (common peroneal). See 38 C.F.R. § 4.124a, Diagnostic Code 8521. As discussed in further detail below, the Board finds this diagnostic code was the most closely analogous to the Veteran’s condition in his right lower extremity for this period. Under Diagnostic Code 8521, a 10 percent evaluation is assigned for mild incomplete paralysis, a 20 percent evaluation is assigned for moderate incomplete paralysis, and a 30 rating evaluation is assigned for severe incomplete paralysis. Comparatively, a 40 percent evaluation is assigned for complete paralysis manifested by: foot drop and slight droop of the first phalanges of all toes, the inability to dorsiflex the foot, and lost extension (dorsal flexion) of proximal phalanges of toes; lost abduction of the foot, weakened adduction; anesthesia covering the entire dorsum of the foot and toes. See Id. From November 9, 2020, the Veteran’s right lower extremity radiculopathy was rated as 8599-8520. This rating is analogous to paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. As discussed in further detail below, the Board finds that this diagnostic code was the most closely analogous to the Veteran’s condition in his right lower extremity for this period. Diagnostic Code 8520 provides for ratings for paralysis of the sciatic nerve. Under Code 8520, complete paralysis of the nerve (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost) is rated as 80 percent; 60 percent disability rating is for an incomplete paralysis with marked muscular atrophy. Disability ratings of 40 percent, 20 percent, and 10 percent are assignable for incomplete paralysis which is moderately-severe, moderate, or mild in degree. 38 C.F.R. § 4.124a, Code 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Words such as “severe,” “moderate,” and “mild” 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. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 C.F.R. §§ 4.2, 4.6. Turning to the record, at an October 2007 VA examination, the Veteran reported constant pain radiating to the right leg, lateral thigh, to the right calf and right foot. He reported associated toe numbness, but no leg numbness. Physical examination revealed that pinprick testing was good and strength testing was normal. There was no foot drop, muscle atrophy, or muscle spasm. Motor skills were normal. Bilateral patellar reflexes were hyperreflexic. Next, another VA examination was conducted in September 2008. A diagnosis of degenerative joint disease of the lumbar spine with radiculopathy status post L5-S1 fusion was rendered. At the time of the examination, the Veteran reported low back pain radiating to his legs. He reported that he had lumbar spine surgery in March 2008, however, he noted that the back and leg pain recurred. Sensory examination to light touch and vibration was normal in the lower extremities including the sacral segment. There was increased sensation to pinprick on the right leg and foot diffusely. On motor examination, muscle tone was normal and there was no atrophy. Strength in the lower extremities was normal. Deep tendon reflexes at the Achilles tendons were 2+ and patella tendons of both knees were brisk. At a VA examination in February 2009, the Veteran reported experiencing right paresthesias and dysesthesias in a vaguely S1 radicular pattern. Physical examination revealed no sciatic notch tenderness and sensation was intact to light touch for all dermatomes of the lower extremities. Motor strength was normal and reflexes were physiologic and symmetric. Straight leg raise testing was negative bilaterally. Nerve conduction studies in March 2009 showed no electrodiagnostic evidence of acute radiculopathy or plexopathy of the right lower extremity. A Medical Evaluation Board examination in September 2009, showed strength was 4/5 in the right quadriceps. The Veteran was assessed was right leg neuropathy - radicular. March 2010 Physical Evaluation Board proceedings indicated the Veteran had right sided sciatica. Strength testing was slightly reduced for quadricep extensions but was normal elsewhere. Deep tendon reflexes were found to be symmetric. No sensory deficits were reported. Mild incomplete paralysis of the sciatic nerve was found. At a VA examination in January 2011, the Veteran reported numbness circumferentially in the leg distal to the knee on the right side, and numbness of the entire foot and all five toes on the right. On physical examination, sensation in the lower extremities was judged to be normal on the right. It was circumferential from 4 centimeters distal to the knee down to the toes and judged impaired, not absent. Muscle strength testing at the ankle, knee and hip revealed normal findings. On VA examination in October 2013, a diagnosis of right lower extremity radiculopathy was rendered. The Veteran reported severe symptoms of right lower extremity constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. Objectively, muscle strength in the right lower extremity was slightly reduced in knee extension, ankle plantar flexion, and ankle dorsiflexion. There was no muscle atrophy. Deep tendon reflexes were normal at the right knee and ankle. Sensation was decreased at the right lower leg, ankle, and foot/toes. There were no trophic changes but gait was noted as slow due to a right foot problem. The examiner indicated that the right sciatic nerve was normal. There was mild incomplete paralysis of the right side external popliteal nerve. Private treatment records from March 2015 show normal muscle strength in the right lower extremity. Sensory examination to light touch was decreased in the right lower extremity but was otherwise intact. Deep tendon reflexes were normal in the right lower extremity. Straight leg raise testing was negative. Pursuant to the Board’s October 2020 remand, another VA examination was conducted in November 2020 to determine the severity of the Veteran’s right lower extremity radiculopathy. Diagnoses of right foot neuropathy and right lumbar radiculopathy were rendered. The examiner noted the Veteran’s symptoms of right lower extremity radiculopathy as moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Muscle atrophy was observed with the normal side at 41.5 cm and the atrophied side at 37 cm. Deep tendon reflexes were normal for the right knee and the right ankle. Sensory examination showed decreased sensation at the right thigh/knee. An antalgic gait was reported from the noted neuropathy. The right sciatic nerve showed incomplete paralysis described as severe with marked muscular atrophy. The external popliteal nerve and the anterior tibial nerve were noted as incomplete paralysis and described as mild bilaterally. The internal popliteal nerve was noted as incomplete paralysis and described as mild only for the right side. Diagnostic testing revealed an acute right S1>L5 radiculopathy that point toward far lateral disc protrusion at this level also with a concomitant subacute/chronic L4 radiculopathy. Prior to November 9, 2020, the symptomatology of the Veteran’s right lower extremity radiculopathy is more nearly approximated by 10 percent rating criteria under the Diagnostic Code 8599-8521. As noted above, mild incomplete paralysis under DC 8521 warrants no greater than a 10 percent rating, and when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. For this period, the Veteran is reported to consistently have a negative straight leg raise test. Further, muscle strength testing is reported as normal or only slightly reduced. The Veteran’s reflexes were noted to be normal with only a slight decrease in sensation noted later in this period. Although the Veteran reported severe symptoms in all extremities across all noted locations at the time of the October 2013 VA examination, the same examination reported that only the external popliteal nerve had mild incomplete paralysis with all other nerves marked as normal, including the Veteran’s right sciatic nerve. Accordingly, the Board finds that entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy is not warranted for this period. From November 9, 2020, the symptomatology of the Veteran’s right lower extremity radiculopathy is more nearly approximated by 60 percent rating criteria under the Diagnostic Code 8599-8520 because the evidence shows that the Veteran has severe incomplete paralysis with marked muscular atrophy. There is no evidence in the record of complete paralysis of the sciatic nerve, which would warrant a higher 80 percent evaluation. Specifically, there is no evidence that the Veteran’s right foot dangled or dropped, and no evidence of a complete absence of active movement possible of muscles below the knee, with knee flexion weakened or lost. Therefore, a higher evaluation is not warranted for this period. The Board has considered other diagnostic codes applicable to the Veteran’s claim. However, as discussed in detail above, the evidence indicates that the right sciatic nerve is affected only from November 9, 2020. Therefore, the Board finds that no other diagnostic codes would be appropriate to evaluate the Veteran’s right lower extremity radiculopathy. 38 C.F.R. § 4.1, 4.2 (2016); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board acknowledges the Veteran’s contentions that his service-connected right lower extremity radiculopathy warrants an increased evaluation in excess of 10 percent prior to November 9, 2020, and in excess of 60 percent thereafter. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to neurological disorders, to include right lower extremity radiculopathy, as this requires highly specialized knowledge and training. 38 C.F.R. § 4.124a. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.124a with respect to determining the severity of his service-connected right lower extremity radiculopathy. See Moray v. Brown, 5 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, the Board finds examinations conducted by trained medical professionals are more probative in determining the severity of the Veteran’s service-connected right lower extremity radiculopathy. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. Michael D. Lyon Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.