Citation Nr: 21028060 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-18 592 DATE: May 10, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected right lower extremity radiculopathy associated with low back strain prior to October 13, 2020 is denied. Entitlement to a disability rating in excess of 20 percent for service-connected right lower extremity radiculopathy associated with low back strain on and after October 13, 2020 is denied. Entitlement to an initial disability rating in excess of 10 percent for service-connected left lower extremity radiculopathy associated with low back strain prior to October 13, 2020 is denied. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy associated with low back strain on and after October 13, 2020 is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for service-connected low back strain with degenerative changes, disc space narrowing, and L1 wedge deformity (lumbar spine disability) is remanded. FINDINGS OF FACT 1. The Veteran's right lower extremity radiculopathy disability has not been manifested by moderate impairment prior to October 13, 2020. 2. The Veteran's right lower extremity radiculopathy disability has not been manifested by moderately severe impairment effective October 13, 2020. 3. The Veteran's left lower extremity radiculopathy disability has not been manifested by moderate impairment prior to October 13, 2020. 4. The Veteran's left lower extremity radiculopathy disability has not been manifested by moderately severe impairment effective October 13, 2020. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520. 2. The criteria for a disability rating in excess of 20 percent effective October 13, 2020 for radiculopathy of the right lower extremity disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for an initial disability rating in excess of 10 percent for radiculopathy of the left lower extremity disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for a disability rating in excess of 20 percent effective October 13, 2020 for radiculopathy of the left lower extremity disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1991 to July 1992. This matter is before the Board of Veterans' Appeal (Board) on appeal of a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing in June 2013. In April 2018, the VA sent the Veteran a letter notifying him that the Veterans Law Judge (VLJ) who conducted the Board hearing is no longer employed by the Board. The Veteran was to respond in 30 days if he requested another Board hearing. The Veteran did not respond and, therefore, the Board assumes that the Veteran would not like another Board hearing. By way of procedural history, this matter has previously been before the Board in August 2017, August 2018, and October 2020. In the most recent Board decision, the Board issued a remand for further development of the issues. Specifically, the Board requested that new VA examinations be completed in connection with the issues now before the Board. While on remand, the RO granted an increased rating of 20 percent for bilateral lower extremity radiculopathy effective October 13, 2020. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. 1. Bilateral Lower Extremities Radiculopathy As an initial matter, entitlement to a higher disability rating for the Veteran's service-connected bilateral lower extremities radiculopathy was remanded in the October 2020 Board remand. The Board notes that on remand, the Veteran was assigned a 20 percent disability rating effective October 13, 2020. The service-connected radiculopathy of the lower extremities is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. This section assigns ratings based upon complete or incomplete paralysis of the lower extremities. Under Diagnostic Code 8520 when there is incomplete paralysis of the sciatic nerve a 10 percent rating is assigned for mild impairment, a 20 percent rating is assigned for moderate impairment, a 40 percent rating is assigned for moderately severe impairment, and a 60 percent rating is assigned for severe impairment with marked muscular atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the 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. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve 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. Prior to October 13, 2020 -10 Percent The Board has reviewed all relevant medical and lay evidence for this period on appeal, to include VA and private treatment records and examinations and the June 2013 Board hearing testimony. Given the evidence, the Board finds the 10 percent ratings currently assigned to be appropriate. The April 2010 VA spine examination noted the Veteran reported experiencing radiating pain in both legs with daily numbness. During the August 2017 VA examination, the Veteran reported occasionally his right leg gives out and he falls. The examiner noted that the Veteran suffered from mild bilateral lower extremity radiculopathy. His symptoms included moderate bilateral constant pain and mild bilateral numbness. The April 2019 VA examination noted mild bilateral lower extremity radiculopathy. The Veteran's symptoms included bilateral mild constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness. None of the VA examinations showed muscle atrophy in the right or left lower extremity. In the absence of more significant neurologic impairment, and based upon the cumulative evidence, the Board finds that the Veteran's right and left lower extremity disabilities most closely approximates mild radiculopathy allowing a 10 percent rating. There is no evidence that the Veteran's diagnosed conditions amounted to moderate or higher symptoms. Effective October 13, 2020 20 Percent The Board has reviewed all relevant medical and lay evidence for this period on appeal. Given the evidence, the Board finds the 20 percent ratings currently assigned to be appropriate. The October 2020 VA back conditions examination noted the Veteran's diagnosis of bilateral lower extremity radiculopathy. The examiner found the Veteran's conditions were of moderate severity. The Veteran suffered from moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness. The Veteran also underwent a VA peripheral nerves conditions examination in October 2020. Here, the examiner diagnosed the Veteran with left and right lower extremity radiculopathy. The Veteran reported that he experiences pain to include radiating down both legs to his calves and feet. The Veteran also reported that his feet often feel numb. The examiner noted that the Veteran suffered from bilateral mild constant pain, mild paresthesias and/or dysesthesias, moderate intermittent pain, and moderate numbness. The examiner found the Veteran suffers from moderate incomplete paralysis of the sciatic nerve in his right and left lower extremities. The examiner also noted that the Veteran's condition impacted his ability to work because the Veteran is limited with prolonged walking, standing, sitting, and cannot lift or carry additional weight. There was no evidence of muscle atrophy in the right or left lower extremity. The Board finds the evidence of record amounts to moderate severity in his left and right lower extremities. The medical treatment records and the VA examinations all fail to establish any finding of a moderately severe, severe, or complete paralysis in either his right or left lower extremity. Under 38 C.F.R. § 4.124a, a moderate rating is the highest that can be assigned when the involvement is wholly sensory, as here. As such, the claims for ratings in excess of 20 percent must be denied. 38 C.F.R. § 4.7. In addition, neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND The Board finds a remand is necessary for the Veteran's claim for an increased rating for his service-connected lumbar spine disability. Specifically, the Board finds that an addendum opinion to the October 2020 VA examination is necessary. The October 2020 VA examination noted that the Veteran's initial range of motion was abnormal or outside the normal range. The examiner provided the initial range of motion degrees for each movement. Then, the examiner noted that the Veteran experienced pain during the examination which causes functional loss. Unfortunately, the Board finds that the examiner failed to provide at what degree the Veteran started experiencing pain and the degree of functional loss. The Board notes that it is necessary to determine the effect the pain has on the Veteran's range of motion as it was already noted to result in functional loss. The matter is REMANDED for the following action: Obtain an addendum medical opinion from the October 2020 VA examiner. If the October 2020 VA examiner is not available, then a new VA examination must be completed. In addition, if the October 2020 VA examiner finds a new VA examination is necessary, one must be completed prior to issuing an opinion. The examiner should address the Veteran's pain noted during the examination during his initial range of motion testing. Specifically, the examiner should address the functional loss, in the form of degrees, as a result of pain on motion. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Glaeser, 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.