Citation Nr: 21023161 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-14 242 DATE: April 20, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for the service-connected right lower extremity radiculopathy is DENIED. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) prior to February 13, 2014, is REMANDED. FINDING OF FACT Throughout the claim period, the Veteran’s right lower extremity radiculopathy has been manifested by moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW The criteria have not been met a rating in excess of 20 percent for right lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from January 1976 to January 1979. INCREASED RATINGS, GENERALLY Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany the right lower extremity radiculopathy. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). As noted above, the Veteran’s entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. Entitlement to an initial rating in excess of 20 percent for the service-connected right lower extremity radiculopathy is denied. In May 2018, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ granted service connection for a right lower extremity radiculopathy effective April 18, 2017, and assigned , which at 20 percent evaluation pursuant to Diagnostic Code 8520. Under Diagnostic Code 8520, moderate incomplete paralysis is assigned a 20 percent rating, and moderately severe incomplete paralysis is warrants a 40 percent rating. Severe incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.124a, a disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of 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 only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In rating peripheral nerve disability, 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. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, can receive a maximum rating of moderate incomplete paralysis, except for tic douloureux or trifacial neuralgia, which may be rated up to complete paralysis. 38 C.F.R. § 4.124. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull. 38 C.F.R. § 4.120. The words “slight,” “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. On April 18, 2017, a Primary Care Attending Note was generated at the Richmond VA Medical Clinic (VAMC). Therein, the provider noted that the Veteran reported intermittent shooting pain in the right lower extremity. In April 2018, the Veteran underwent a VA examination that addressed thoracolumbar spine conditions. At that time, the Veteran reported mild constant pain and paresthesia and/or dysesthesias of the right lower extremity. The VA examiner noted moderate intermittent pain (usually dull) of the right lower extremity. Muscle strength testing showed active movement against some resistance. There was no muscle atrophy. Sensory and reflex testing was normal. The VA examiner opined that the Veteran demonstrated moderate right lower extremity radiculopathy. In February 2019, a Psychiatry Attending Note was generated at the Richmond VAMC. At that time, the Veteran reported shooting pain down both legs. In August 2019, a notation was generated a the Richmond VAMC. At that time, the Veteran reported 7/10 pain across the spine and down both legs. The Veteran relayed that the pain was aching, burning, sharp and shooting. The Veteran relayed that the pain was not associated with numbness and weakness. In October 2019, the Veteran underwent a VA examination that addressed thoracolumbar spine conditions. The VA examiner noted a diagnosis for right lower extremity radiculopathy. At that time, the VA examiner noted mild right lower extremity constant pain, intermittent pain, paresthesias and/or dysesthesia, and numbness. Muscle strength, reflex testing, and sensory testing were normal. The Veteran did not demonstrate muscle atrophy. In November 2019, a Primary Care Attending Note was generated at the Richmond VAMC. At that time, the Veteran reported that his back pain has flared up, and he endured intermittent shooting pain in the right lower extremity. In January 2021, the Veteran underwent a VA examination that addressed thoracolumbar spine conditions. The VA examiner did not report complete paralysis. At time, the VA examiner noted a diagnosis for right lower extremity radiculopathy. The Veteran reported moderate intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness. The VA examiner remarked that, “right lower extremity radiculopathy associated with intervertebral disc syndrome with degenerative arthritis and lumbosacral strain (previously rated as lumbosacral strain) there is no change in the diagnosis.” Muscle strength and reflex testing was normal. However, sensory testing showed decreased sensation of the right lower extremity. The VA examiner opined that the Veteran’s right lower extremity disability was moderate in severity. During the appeal period, the Veteran’s treatment notations from the Richmond and Philadelphia VAMCs have been associated with the claims file on numerous occasions. The Board has cited a few of the pertinent treatment notations in the opinion above. After deliberate review, the Board finds that the treatment records do not contain a notation that identifies moderately severe incomplete paralysis of the right lower extremity during the claim period. The weight of the evidence is against a finding that the severity of Veteran’s radiculopathy of the right lower extremity more closely approximates moderately severe incomplete paralysis. Throughout the appeal period, the Veteran’s reflexes have been normal. Muscle strength testing has either reflected movement against resistance or has been normal. The Veteran has experienced decreased sensation and pain. Furthermore, the Veteran’s lay statements indicate that his primary symptoms are pain, tingling, and numbness in his right lower extremity. His motor function and reflexes are otherwise intact. The VA examination reports of record reflect moderate incomplete paralysis. There is no evidence of moderately severe incomplete paralysis of the sciatic nerve. The Board finds that the preponderance of the evidence stands counter to the Veteran’s claim for an initial rating in excess of 20 percent for the right lower extremity radiculopathy. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claim for an initial rating in excess of 20 percent for right lower extremity radiculopathy must be denied, because the preponderance of the evidence weighs against his claim. REASONS FOR REMAND Entitlement to a TDIU prior to February 13, 2014, is remanded. The Board observes that the Veteran does not meet the schedular criteria for TDIU prior to February 13, 2014. However, the September 2018 physician’s report indicates that the Veteran’s service-connected disabilities impacted his ability to obtain and maintain substantially gainful employment during the appellate period when the schedular criteria were not satisfied; meaning, the period before February 13, 2014. Consequently, the Board finds that the evidence warrants a remand to the AOJ. On remand, the AOJ should obtain a report from the Director, VA Compensation and Pension Service on the Veteran’s extraschedular entitlement to TDIU prior to February 13, 2014. Consequently, the matter is REMANDED to the AOJ for the following actions: 1. The AOJ should forward the Veteran’s TDIU claim for an earlier effective date to the Under Secretary for Benefits or the Director, VA Compensation and Pension Service for consideration of the assignment of extraschedular rating under the provisions of 38 C.F.R. § 3.321. 2. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim for an earlier effective date for TDIU. If the benefit sought is not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. R.R. WATKINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.