Citation Nr: 21024406 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-27 438 DATE: April 22, 2021 ORDER A compensable rating for right lumbar radiculopathy (sciatic nerve) prior to October 5, 2020, is denied. A rating in excess of 10 percent for right lumbar radiculopathy (sciatic nerve) since October 5, 2020, is denied. Service connection for right hip bursitis is denied. REMANDED Service connection for headaches. FINDINGS OF FACT 1. The Veteran had active duty from August 2007 to January 2008 and January 2009 to May 2011; he has been 100 percent disabled since March 2014. 2. Prior to October 5, 2020, right lumbar radiculopathy was manifested by subjective complaints of pain and numbness; objective findings included no incomplete paralysis of the right sciatic nerve. 3. Since October 5, 2020, right lumbar radiculopathy has been manifested by subjective complaints of paresthesia and numbness; objective findings include mild incomplete paralysis of the right sciatic nerve. 4. The Veteran was diagnosed with right hip bursitis in service; however, symptoms were not shown to be chronic; a current diagnosis of right hip bursitis is not casually or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right lumbar radiculopathy (sciatic nerve) prior to October 5, 2020, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code (DC) 8520 (2020). 2. The criteria for a rating in excess of 10 percent for right lumbar radiculopathy (sciatic nerve) since October 5, 2020, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, DC 8520 (2020). 3. Right hip bursitis was not incurred in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge in April 2019. A copy of the transcript has been associated with the claims file. In December 2019, these issues were remanded for additional development. They are again before the Board for adjudication. Increased Ratings for Right Lumbar Radiculopathy Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. §§ 4.1. Separate diagnostic codes identify the various disabilities. The Veteran has been rated noncompensable under DC 8520 for right lumbar radiculopathy prior to October 5, 2020, and at 10 percent since October 5, 2020. Under DC 8520, a 10 percent rating is warranted when the objective medical evidence shows mild incomplete paralysis. A 20 percent rating is warranted when the objective medical evidence shows moderate incomplete paralysis. Turning to the evidence for the period prior to October 5, 2020, the medical evidence does not show mild incomplete paralysis of the right sciatic nerve. Specifically, in an April 2016 VA examination, the Veteran complained of numbness in the lower extremities. Upon examination, pain in the right lower extremity (RLE) was mild. However, there was no incomplete paralysis of the right sciatic nerve. Further, in a September 2016 clinical record, the Veteran complained of intermittent numbness and pain in the lower extremities. In addition, in a December 2016 VA examination, there was no incomplete paralysis of the right sciatic nerve. In a March 2017 VA examination, moderate RLE pain and numbness was noted; however, there was no incomplete paralysis of the right sciatic nerve. Based on the above, the medical evidence does not support a compensable rating for radiculopathy of the RLE prior to October 5, 2020. While the Veteran reported moderate pain and numbness, there was no evidence of mild incomplete paralysis of the right sciatic nerve. Therefore, the medical evidence does not support a compensable rating for right lumbar radiculopathy prior to October 5, 2020. Turning to the evidence for the period since October 5, 2020, the medical evidence showed, at worst, mild incomplete paralysis of the right sciatic nerve. Specifically, in an October 2020 VA examination, the Veteran complained of intermittent paresthesia and numbness in legs. Upon examination, mild incomplete paralysis of the right sciatic nerve was noted. Based on the above, the medical evidence does not support a rating in excess of 10 percent for right lumbar radiculopathy since October 5, 2020. In this regard, the medical evidence showed, at worst, mild incomplete paralysis of the right sciatic nerve. Clinical records do not contradict these findings. Therefore, the medical evidence does not support a rating in excess of 10 percent for right lumbar radiculopathy since October 5, 2020. The Board has also considered the Veteran’s lay statements and testimony that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s right knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which a right knee disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by a right knee disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Service Connection for Right Hip Bursitis Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). As an initial matter, the Veteran is currently service connected for right hip arthritis. In an October 2020 VA examination, the examiner opined that right hip bursitis was a separate condition from right hip arthritis. Therefore, only complaints, diagnoses, and treatment for right hip bursitis will be addressed. Turning to the medical evidence, the Veteran was diagnosed with right hip bursitis in 2015. Therefore, a current disorder is shown, and the first element of service connection is met. As to an in-service incurrence, service treatment records (STRs) reflect that the Veteran was first diagnosed with right hip bursitis in 2007. Right hip bursitis was also shown in October 2009 and March 2011. Therefore, the second element of service connection is met. As to nexus, at an October 2020 VA examination, the Veteran complained of hip pain starting in 2010 due to falls incurred while serving as a medic in service. He denied a specific injury to the hip. Upon examination, the examiner opined that right hip bursitis was less likely than not incurred in service. She reasoned that at the end of the Veteran’s active duty, the STRs were absent of complaints, diagnoses, or treatment for right hip bursitis. A reasonable reading of the medical opinion is that the in-service complaints related to right hip bursitis resolved without chronic residuals. This is consistent with contemporaneous medical records which reveal no complaints related to the right hip in a September 2014 Reserve Readiness examination. There is no contradictory opinion. Therefore, the medical evidence does not support the claim of service connection. The Board has considered the Veteran’s lay statements and testimony that a right hip disorder began in service. As noted above, he is service connected for right hip arthritis based, in part, on the in-service complaints of right hip pain and a post-service finding of arthritis. While he is competent to report symptoms because this requires only personal knowledge as it came to him through his senses, he is not competent to offer an etiology of right hip bursitis. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings, which found that right hip bursitis was not chronic in service, than to his statements. In light of the above, the preponderance of the evidence is against the claim and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28. Vet. App. 366, 369-370 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND In December 2019, the Board denied service connection for headaches. The Veteran appealed to the Veterans’ Claims Court. In September 2020, the Court Clerk vacated the Board’s decision in a Joint Motion for Partial Remand and remanded the claim for additional development. Specifically, the Court found that the June 2015 VA examination, was inadequate, as the examiner did not provide adequate medical rationale as to whether headaches were secondary to service connected traumatic brain injury (TBI). Therefore, a medical opinion is needed. The matter is REMANDED for the following action: Direct the claims file to a clinician to provide an opinion as to whether headaches were caused or aggravated by service connected TBI. If the clinician determines that an examination is necessary to provide the requested opinion, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ragofsky, Attorney Advisor 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.