Citation Nr: 21027344 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-04 062 DATE: May 5, 2021 ORDER Entitlement to a separate evaluation of 20 percent, but no higher, under Diagnostic Code (DC) 8520 for left lower extremity radiculopathy from March 5, 2018 is granted. Entitlement to service connection for a dental condition for compensation purposes is denied. REFERRED The issue of a dental condition for treatment purposes is referred to the Agency of Original Jurisdiction (AOJ). The AOJ should refer the claim to Veterans Health Administration (VHA) for adjudication of Class eligibility in the first instance under 38 C.F.R. § 3.381. See 38 C.F.R. § 17.161. FINDINGS OF FACT 1. The General Rating Formula for Diseases and Injuries of the Spine states that any associated objective neurologic abnormalities should be separately evaluated under an appropriate diagnostic code. 2. From March 5, 2018, the Veteran's left lower extremity radiculopathy was manifested by moderate incomplete paralysis of the sciatic nerve, but not by moderately severe incomplete paralysis. 3. The Veteran's dental condition is not chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, or loss of the hard palate. CONCLUSIONS OF LAW 1. The criteria for entitlement to a separate 20 percent rating, but no higher, for left lower extremity radiculopathy from March 5, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, DC 8520. 2. The criteria for entitlement to service connection for a dental condition for compensation purposes have not been met. 38 U.S.C. §§ 1110, 1131, 1712, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150, Diagnostic Codes 9900-9916, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1986 to February 1991. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision, dated June 2018, issued by a Department of Veterans Affairs (VA) Regional Office. In its decision, the RO continued the 20 percent evaluation for left lower extremity radiculopathy and denied service connection for a dental condition (also claimed as chipped and capped tooth and damaged from fillings). The Veteran timely appealed. 1. Entitlement to an increased evaluation of 20 percent, but no higher, under DC 8520 for left lower extremity radiculopathy from March 5, 2018 In a June 2019 rating decision, the RO subsumed the claim for left lower extremity radiculopathy into the rating for lumbar spinal stenosis with osteoarthritis degenerative disc disease and intervertebral disc syndrome effective October 25, 2012. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine states that any associated objective neurologic abnormalities should be separately evaluated under an appropriate diagnostic code. Therefore, the Board finds that it is appropriate to assign a separate rating for the left lower extremity radiculopathy from March 5, 2018, the date of the Veteran's claim for an increased rating. Under DC 8520 incomplete paralysis of the sciatic nerve is rated as 10 percent disabling when it is mild, 20 percent disabling when it is moderate and 40 percent when it is moderately severe. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various DCs are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. 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 wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Board may consider treatment records dated within the one-year "lookback" period before the claim was filed in March 2018 in order to assess the disability picture at the time the claim was filed. In a May 2017 treatment record, the Veteran complained of pain and numbness in the left lower extremity after walking for 15 minutes. When he had tingling/numbness he had to sit down and it would resolve after 30 to 45 minutes. In a November 2017 medical treatment record, the Veteran complained of tingling in the left lower extremity after walking. He also noted losing strength in his leg. A February 2018 medical treatment record noted that the Veteran had numbness in the left lower extremity. The Veteran's aunt provided a lay statement in February 2018 regarding his back and knee disabilities. She wrote, Due his back and knee conditions, he can only stand or walk for maybe 10 minutes before needing to sit down. He has great difficulty and pain coming up and going down the stairs and he has to rest after getting up or down stairs because it takes so much out of him. He can't ride a long distance in a car because that's painful as well. He doesn't sleep well due to pain. He can't lift heavier objects anymore because it's so painful. Bending over is an issue as well...He has to elevate his leg often because it swells up bad. He complains about the swelling and pain from the swelling almost daily. He lays down or sits in the recliner to elevate his leg for an hour or longer daily and rubs it while it's elevated. He normally elevates his leg at waist level and most of the time that he is sitting down, he has his leg elevated...He will cook but he has to stop in the middle and rest because he can't stand long enough to finish the meal. He can't move the furniture or anything around...Basically, any time he is mobile for more than a few minutes, his leg starts to swell, and he has to go elevate it. We have a shower chair that he uses to bathe because it's hard for him to stand and wash himself off. Some days he struggles to get out of bed because he is so stiff, so he has to lay a while before he can get up. If he ever can't get up himself, I don't know what we will do because I surely can't help him. He does struggle with any daily chore and it is painful and he does have to take a lot of breaks. He has learned new ways to manage what has to be done on his limitations. Unfortunately, I'm not sure what will happen in the future because as the years go by, his condition is worsening. The Veteran's cousin provided a lay statement in March 2018. He also discussed the Veteran's back and knee disabilities. He provided, Usually every time I go visit [him] he is laying with his legs elevated. Normally he keeps his legs elevated in his recliner most of the day. He can't stand or walk for long periods. We seldom go anywhere together because he always says he is in too much pain. Mostly, when I see him, he is home sitting down with his legs up due to how often and how severely they swell. If he walks or stands for more than a few minutes his legs start to swell and he needs to sit and elevate them...He can't lift anything heavy. He struggles to bend over or stoop down. He lives in constant pain. His pain affects his sleep and concentration. In a March 2018 statement from the Veteran's wife, she discussed his "bad back and bad knees." She provided, Due to his bad back and knees, he can only stand or walk for 15 minutes before needing to sit down. He can't stand for long due to the tingling. He has to elevate his leg daily due to his leg swelling. He can't lay down much because his back hurts so bad. He sleeps in a recliner because the bed is uncomfortable. If he is sitting down, he has his leg elevated on the recliner all the time. His leg swells anytime he is standing or walking for any period of time. His leg burns and hurts bad. Bending over is difficult for him due to his back. I have to help put his socks and shoes on daily because he can't bend over far enough to do it himself. I help him take his pants off and help him into bed. He needs my help getting in and out of the shower and then he uses a shower chair to bathe. Sometimes I do have to help him wash his back though. He can't lift anything heavy, especially if he has to carry it up the steps such as a pack of pop. He struggles a lot getting up and down the stairs and he has fallen a few times going down the stairs and I had to help pick him up. He uses a cane almost all the time, which makes it difficult for him to carry anything and walk. He can't ride in a car for longer than an hour before his leg swells and his back is aching. He has to have his leg elevated when he is sitting down, or it will start to swell and gets very tight and warm. It's very painful for him. I take care of cleaning the house because he can't bend over to clean the toilet or tub or stand long enough to vacuum or sweep. When he cooks he has to take breaks often to sit on the stool because he can't stand for long. He gets really dizzy when he stands too long. I take care of the laundry because he can't bend over to get the wet heavy clothes out of the washer and into the dryer and he can't carry the basket of clothes either...His limitations and pain continue to affect his happiness and quality of life. [He] needs my assistance daily with simple tasks due to his back and knees. On VA examination in April 2018, the Veteran stated that he continued to have bilateral lower extremity radicular pain and numbness. The left lower extremity was worse than the right lower extremity. Symptoms attributable to the peripheral nerve condition included moderate constant pain in the left lower extremity and moderate numbness in the left lower extremity. Muscle strength on the left side was 5/5. He did not have muscle atrophy. Sensory examination showed the left upper anterior thigh and left thigh/knee were normal. He had decreased sensation in his left lower leg/ankle and foot/toes. He did not have trophic changes attributable to the peripheral neuropathy. He had an antalgic gait due to bilateral knee pain. The examiner noted that the Veteran had moderate incomplete paralysis in the left side. The left external popliteal, musculocutaneous, anterior tibial, internal popliteal, posterior tibial nerve, anterior crural, internal saphenous nerve, obturator nerve, external cutaneous nerve of the thigh, and ilio-inguinal nerve were all normal. The examiner noted that the Veteran used a cane due to his bilateral knee pain, not due to his back/radicular symptoms. Functional impact was described as the Veteran would have difficulty with prolonged walking, climbing, due to radicular pain in both lower extremities. In an April 2019 physical therapy note, the Veteran noted that his left leg felt numb. There was an increase in left lower extremity symptom in his standing extension and flexion. There was relieved left lower extremity numbness in his shifting correction to the right side. His gait pattern appeared guarded due to his left lower extremity numbness. In another April 2019 physical therapy note, the Veteran stated that his left lower extremity numbness was better. In a January 2020 medical treatment record, the Veteran noted that he was having radiculopathy of both legs with some sedation with gabapentin and minimal relief with a muscle relaxer. In a March 2020 medical treatment record, the Veteran's strength in his left lower extremity was a 5/5 for all tests. In a September 2020 VA examination for back conditions, it was noted that the Veteran had radicular pain and other symptoms due to his radiculopathy. It was noted that he had moderate intermittent pain in the left lower extremity. He also had moderate paresthesias and/or dysesthesias in the left lower extremity and moderate numbness in the left lower extremity. The severity of the radiculopathy on the left side was moderate. With regard to the period from March 5, 2018, the evidence establishes that the Veteran's left lower extremity radiculopathy was of moderate severity. Significantly, the April 2018 and September 2020 VA examiners characterized the left lower extremity radiculopathy as moderate in severity. Therefore, the Veteran's left lower extremity radiculopathy is found to be of moderate severity for the period from March 5, 2018. With regard to the entirety of the period on appeal, however, the evidence preponderates against finding that the left lower extremity radiculopathy was manifested by moderately severe symptoms. In this regard, left lower extremity strength was no worse than 5/5. Sensation was, at worst, decreased, but not absent. Left lower extremity constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness were generally reported to be no more than moderate. No trophic changes or muscle atrophy were noted, and the VA examinations of record characterized the left lower extremity radiculopathy as no worse than moderate. While the record does indicate more than merely sensory findings, to include gait disturbance and use of assistive devices this evidence does not more nearly approximate moderately severe symptomatology at any point. Overall, the disability picture preponderates against finding that the disorder met or more nearly approximated moderately severe incomplete paralysis. The Veteran did not report any flare-ups of his left lower extremity radiculopathy during his VA examinations or provide any statements about flare-ups of his left lower extremity radiculopathy. As discussed above, flare-ups must be quantifiable and must result in limitation of function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. 38 C.F.R. § 3.344. Thus, in this case, there is no evidence of flare-ups that more nearly approximate moderately severe incomplete paralysis. See 38 C.F.R. § 4.124a, DC 8520 (when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree). In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, any reports of exacerbation or flare-ups are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2012), the spirit of 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. Based on the foregoing, the evidence establishes that a separate 20 percent rating for left lower extremity radiculopathy is warranted from March 5, 2018. The evidence preponderates against finding that a rating in excess of 20 percent is warranted at any time during the period on appeal. 2. Entitlement to service connection for a dental condition for compensation purposes The Veteran is seeking service connection for a dental condition (also claimed as chipped and capped tooth and damaged from fillings). It is unclear whether the Veteran is seeking service connection for a dental condition for compensation purposes or for treatment purposes. The Board will resolve this ambiguity in the way most favorable to the Veteran and assume he is seeking both. Thus, the Board will adjudicate the compensation question and refer the question of treatment for the AOJ and VHA to adjudicate. Service connection for VA compensation purposes is only available for dental and oral conditions that are specifically delineated in 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, loss of the maxilla, nonunion or malunion of the maxilla, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Service connection for a loss of teeth will be considered for compensation purposes, if it is due to a loss of substance of the body of either the maxilla or the mandible provided that the bone loss is due to either trauma or disease such as osteomyelitis and not to the loss of the alveolar process as a result of periodontal disease. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. Thus, in order to establish service connection for compensation purposes, it is not enough to show that teeth were lost due to trauma. The evidence must demonstrate that trauma resulted in loss of substance of the maxilla or mandible, which resulted in loss of teeth. Service trauma is defined as an injury or wound produced by an external physical force during a service member's performance of military duties. See Nielson v. Shinseki, 607 F.3d 802 (Fed. Cir. 2010). The definition excludes teeth that are removed as "the intended result of proper medical treatment." VA's General Counsel has held that dental treatment of teeth, even extractions, during service does not constitute dental trauma. See VAOPGCPREC 5-97, 62 Fed. Reg. 15,566 (1997). After reviewing the evidence of record, the Board finds that the Veteran does not have a dental condition for which service connection can be granted for compensation purposes. The service treatment records note dental treatment; however, there is no medical evidence in the record which indicates that the Veteran suffered a loss of the mandible or maxilla due to in-service trauma. Further, there is no medical evidence of any other dental condition for which service connection can be granted. A July 2003 dentistry note recorded that the Veteran had an unspecified acquired absence of teeth. An April 2004 dentistry note showed that the Veteran had a dental disorder not otherwise specified. The Veteran presented with episodic pain and swelling associated maxillary and mandibular third molars. While the Veteran's claim for a dental condition is for the issue of a chipped and capped tooth and damage from fillings, the medical evidence of record does not suggest that any tooth loss was due to loss of the mandible or maxilla. As noted above, the need for subsequent extractions is not deemed dental trauma and the intended results of dental treatment during service also does not constitute dental trauma. Therefore, even to the extent that the Veteran suffered tooth loss due to service trauma, such tooth loss is not compensable in this case. Based on the above discussion, there is no competent evidence of a dental condition for which for which compensation is payable. See 38 C.F.R. § 4.150; Brammer v. Brown, 3 Vet. App. 223 (1992). Based on the foregoing, the Board concludes that there is no basis under the law for the award of service connection compensation for a dental condition. Under these circumstances, the Board must deny the claim for service connection for a dental condition for compensation purposes. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 55 (1990). LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bristor 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.