Citation Nr: 21024208 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-35 479A DATE: April 22, 2021 ORDER Entitlement to an initial rating of 40 percent, but not higher, for radiculopathy of the right lower extremity from February 16, 2012, to February 13, 2021, is granted. Entitlement to a rating in excess of 40 percent for right lower extremity radiculopathy since February 13, 2021, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT From February 16, 2012, the preponderance of the evidence shows that the Veteran’s radiculopathy of the right lower extremity is manifested by adverse symptomatology that equates to no more than moderately severe incomplete paralysis of the right lower extremity. CONCLUSION OF LAW From February 16, 2012, the criteria for entitlement to an initial rating of 40 percent, but not higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1988 to February 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2013 and May 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the case came before the Board. The Board remanded the Veteran’s radiculopathy claim in order for the Veteran to attend an additional VA examination. The Board also remanded the Veteran’s claim for TDIU because it was inextricably intertwined with the Veteran’s increased rating claim. In February 2021, the RO issued a rating decision that increased the Veteran’s radiculopathy rating to 40 percent disabling effective from February 13, 2021. In this regard, the Board finds that the post-Remand development substantially complied with the Reman. See 38 U.S.C. § 5103; Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). The Board has reached this conclusion because while the appeal was in remand status all identified and available VA and private treatment records were obtained and associated with the record. Id. The Board has also reached this conclusion because the post-remand record shows that in February 2021 the RO provided the Veteran with a VA examination which provides medical opinion evidence adequate to rate the Veteran’s right lower extremity radiculopathy under all applicable rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (“the probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators...”). Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with new VA examination or to try to obtain additional medical record is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Rating Claims The Veteran contends that his disability warrants an increased rating throughout the course of the appeal. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the Veteran is challenging his initial rating. The Veteran’s right lower extremity radiculopathy was awarded a 20 percent rating from February 16, 2012, and a 40 percent rating from February 13, 2021, under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. Radiculopathy of the lower extremities is rated based on the degree of paralysis of the sciatic nerve under 38 C.F.R. § 4.124a, DC 8520. Under this code, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, which contemplates foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated in proportion to the impairment of motor, sensory, or mental function. In rating the Veteran’s 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, and sensory disturbances. 38 C.F.R. § 4.120. The schedule of ratings does not define the terms “moderate” and “severe;” rather than applying a mechanical formula to make a determination, the Board evaluates all of the evidence such that decisions are “equitable and just.” 38 C.F.R. § 4.6. The term “incomplete paralysis,” with respect to 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. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. 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. The maximum rating to be assigned for neuralgia, usually characterized by a dull and intermittent pain of typical distribution so as to identify the nerve, will be that equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The Board also notes that 38 C.F.R. § 4.123 provides that 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 which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. With the above criteria in mind, the Board notes that in May 2012 the Veteran attended a VA examination for this issue. The Veteran reported t he had some numbness and pain radiating from his back down his right leg. Upon examination, the examiner indicated that the Veteran exhibited mild intermittent pain and mild numbness. There was no muscle atrophy. Muscle strength was normal at 5/5. Reflexes were normal at 2+. And, there was no lost sensation or tropic changes, and his gait was normal. The examiner then opined that the Veteran exhibited mild incomplete paralysis of the sciatic nerve. In June 2015, the Veteran attended another VA examination for this issue. The Veteran reported that he experiences almost constant right sided low-back pain. The Veteran stated that it is increased with bending, prolonged sitting, and walking. The Veteran stated that he has constant pain down the medical aspect to the right leg to the medial foot and he also has numbness in the right first and second toes. Upon examination, the examiner indicated that the Veteran exhibited moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness. There was no muscle atrophy. Muscle strength was normal at 5/5. Reflexes abnormal at 1+ at the right knee and absent at the ankle. Sensation decreased at the right ankle and foot. There were no tropic changes and his gait was normal. The examiner then opined that the Veteran exhibited mild incomplete paralysis of the sciatic nerve. In February 2021, the Veteran attended a VA examination for this issue. The Veteran reported constant numbness down the inside of the right leg down to his foot. The Veteran reported a burning sensation in all of his toes. Upon examination, the examiner indicated that the Veteran exhibited mild constant pain, moderate intermittent pain, moderate paresthesias and or dysesthesias, and moderate numbness. There was no muscle atrophy. Muscle strength was reduced at 4/5 at the right knee and ankle. Reflexes abnormal at 1+ at the right knee, ankle, and foot. Sensation decreased at the right ankle and foot. There were no tropic changes and his gait was normal. The examiner then opined that the Veteran’s disability exhibited moderately severe incomplete paralysis of the sciatic nerve. The Board has also reviewed the Veteran’s medical records during this period of the appeal. The Veteran’s records during this period of the appeal show that he has consistently experienced low back pain. In a July 2015 VA treatment note, the Veteran reported that his chronic pain has been stable as far as intermittent right-sided radiculopathy. The Veteran added that “he had one episode where the pain was so severe, he fell onto his right knee, but it seems like it is resolving on its own.” In a December 2018 VA treatment note, the Veteran stated that he was tying his shoes and he felt like a hot knife was plunged in his back when he stood up. The Veteran added that he has chronic partial right foot numbness and it felt worst when he woke up this morning. Initially, the Board finds that the Veteran should not be penalized by the fact that the Veteran waited six years after giving him a VA examination in 2015 to given him a new VA examination in 2021 even though his appeal was pending during this entire period. Moreover, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Next, and as discussed above, while the Veteran’s treatment records periodically document his complaints and treatment for adverse neurological symptomatology the Board does not find anything in these record show his adverse symptomatology to be worse than what was reported at the above VA examinations. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In this regard, the Board finds that the Veteran’s treatment records do not show signs of severe incomplete paralysis with marked muscular atrophy or complete paralysis of the sciatic nerve. Therefore, while the adverse symptomatology associated with the right lower extremity radiculopathies was not as pronounced at the earlier May 2012 and June 2015, with giving the Veteran the benefit of doubt in this matter, the Board nonetheless finds that when considering the totality of his adverse symptomatology including the results from the February 2021 VA examination as well as when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), he meets the criteria for 40 percent ratings under Diagnostic Code 8520 at all times from February 16, 2012. See Tatum, supra; Fenderson, supra. The Board has reached this conclusion because it finds that the adverse symptomatology seen at his VA examinations since February 16, 2012 (i.e., intermittent pain, numbness, paresthesias, and dysesthesias; reflexes being abnormal at 1+ at the right knee and absent at the ankle/reflexes, abnormal at 1+ at the right knee, ankle, and foot; sensation decreased at the right ankle and foot; and/or muscle strength reduced at 4/5 at the right knee) equates to at least moderately severe incomplete paralysis of the right lower extremity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a; Fenderson, supra; Hart, supra; Also see 38 U.S.C. § 5107(b); Ortiz, supra; Gilbert, supra. As to a rating in excess of 40 percent for the Veteran’s right lower extremity radiculopathy under Diagnostic Code 8520 from February 16, 2012, the Board finds that the medical evidence of record does not show that the Veteran’s disability exhibits severe incomplete paralysis with marked muscular atrophy or complete paralysis of the sciatic nerve because such adverse symptomatology was not reported by any of the above VA examiners or documented in any of his treatment records. See Owens, supra. In fact, the above VA examiners were uniform in opining that the Veteran did not have muscular atrophy much less marked muscular atrophy and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. In reaching this conclusion, the Board has considered the Veteran’s reports of pain and numbness. However, the Veteran’s is neither competent or credible to opine that he has severe incomplete paralysis with marked muscular atrophy or complete paralysis of the sciatic nerve because these are medical findings and he does not have the required training. See Davidson, supra. Consequently, the Board finds that an initial evaluation in excess of 40 percent for the Veteran’s service-connected right lower extremity radiculopathy is not met at all times from February 16, 2012. See 38 C.F.R. § 4.124a, Diagnostic Code 8520 Fenderson, supra; Hart, supra. REASONS FOR REMAND Entitlement to a total disability rating based on TDIU is remanded. As to the claim for a TDIU, the Board notes that while the record shows that the Veteran in December 2012 and May 2012 filed with the RO VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU Claims Form), it also finds that neither are adequate for it to adjudicate the current claim. The Board has reached this conclusion because neither contain needed information regarding the Veteran’s vocational history, work experience, his education, and the impact his service-connected disabilities have on him obtaining and maintaining substantial gainful employment. See 38 C.F.R. §§ 3.340, 4.16; Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (holding that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the regional office). Therefore, the Board finds that a remand is required to obtain from the Veteran a and new and fully-executed TDIU Claims Form to obtain this information. See 38 U.S.C.§ 5103A(b); 38 C.F.R. § 19.9. While the appeal is in remand status, any outstanding VA and private treatment records should be obtained and associated with the record on appeal. See 38U.S.C.§5103A(b). This issue is REMANDED for the following actions: 1. Associate with the record any outstanding VA treatment records (if any). 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have, such as the above. This would greatly help the Board and help expedite the case. 3. Obtain and associate with the claims file a fully executed VA Form 21-8940. In this regard, the request should include a request for the Veteran to provide a detailed statement as to his employment history since service along with his duties at those places of employment, whether he continues to be unemployed, the approximate date he stopped working full and part time, and how his service-connected disabilities prevents him from obtaining and maintaining substantial gainful employment in both fields that are sedentary and physically demanding. Any help from the Veteran and his representative in obtaining this information would be appreciated. The request should also notify the Veteran that his claim for a TDIU can be denied if he fails to cooperate with the prosecution of the claim by providing the VA Form 21-8940. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.