Citation Nr: 21028645 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-04 411 DATE: May 11, 2021 ORDER A rating in excess of 10 percent for service-connected radiculopathy affecting the left lower extremity is denied from March 12, 2012 to April 29, 2014. A rating in excess of 10 percent for service-connected radiculopathy affecting the right lower extremity is denied from March 12, 2012 to April 29, 2014. A rating of 20 percent, but not more, for service-connected radiculopathy affecting the left lower extremity is granted from April 29, 2014 to February 2, 2016. A rating of 20 percent, but not more, for service-connected radiculopathy affecting the right lower extremity is granted from April 29, 2014 to February 2, 2016. A rating of 40 percent, but not more, for service-connected radiculopathy affecting the left lower extremity is granted from February 2, 2016. A rating of 40 percent, but not more, for service-connected radiculopathy affecting the right lower extremity is granted from February 2, 2016. A rating in excess of 30 percent for service-connected incomplete paralysis of the left ulnar nerve is denied. REMANDED Entitlement to a compensable rating for service-connected bowel incontinence is remanded. Entitlement to a compensable rating for service-connected acne with dermatitis is remanded. FINDINGS OF FACT 1. From March 12, 2012 to April 29, 2014, the Veteran's radiculopathy affecting the left lower extremity is manifest by no more than mild incomplete paralysis. 2. From March 12, 2012 to April 29, 2014, the Veteran's radiculopathy affecting the right lower extremity is manifest by no more than mild incomplete paralysis. 3. From April 29, 2014 to February 2, 2016, the Veteran's radiculopathy affecting the left lower extremity is manifest by moderate incomplete paralysis. 4. From April 29, 2014 to February 2, 2016, the Veteran's radiculopathy affecting the right lower extremity is manifest by moderate incomplete paralysis. 5. From February 2, 2016, the Veteran's radiculopathy affecting the left lower extremity is manifest by moderately severe incomplete paralysis. 6. From February 2, 2016, the Veteran's radiculopathy affecting the right lower extremity is manifest by moderately severe incomplete paralysis. 7. For the entire period on appeal, the Veteran's service-connected neuropathy of the left ulnar nerve manifests as severe incomplete paralysis of the minor extremity. CONCLUSIONS OF LAW 1. From March 12, 2012 to April 29, 2014, the criteria for a disability rating in excess of 10 percent for service-connected radiculopathy affecting the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. From March 12, 2012 to April 29, 2014, the criteria for a disability rating in excess of 10 percent for service-connected radiculopathy affecting the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. From April 29, 2014 to February 2, 2016, the criteria for a disability rating of 20 percent, but not more, for service-connected radiculopathy affecting the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. From April 29, 2014 to February 2, 2016, the criteria for a disability rating of 20 percent, but not more, for service-connected radiculopathy affecting the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 5. From February 2, 2016, the criteria for a disability rating of 40 percent, but not more, for service-connected radiculopathy affecting the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 6. From February 2, 2016, the criteria for a disability rating of 40 percent, but not more, for service-connected radiculopathy affecting the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 7. For the entire period on appeal, the criteria for a disability rating in excess of 30 percent for neuropathy of the left ulnar nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 2004 to January 2010. The Veteran's appeal regarding the ratings assigned for the service-connected radiculopathy affecting both lower extremities was most recently before the Board of Veterans' Appeals (the Board) in October 2018. The Board remanded the issues to afford the Veteran a new Department of Veterans Affairs (VA) examination to determine the severity of his service-connected radiculopathy affecting both lower extremities. The Veteran received the VA examination requested in the Board's remand in November 2018. He also received a VA examination for peripheral nerve conditions in July 2019. These two issues are once again before the Board. Increased Rating 1. Entitlement to Increased Ratings for Service-Connected Radiculopathy Affecting Both Lower Extremities The Veteran contends that he is entitled to increased ratings for his service-connected radiculopathy affecting both lower extremities. The Veteran's bilateral radiculopathy affecting the sciatic nerve is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.) Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based 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. See 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 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 maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. Currently, the Veteran's service-connected radiculopathy affecting both lower extremities is evaluated as 10 percent disabling from March 12, 2012 and 20 percent disabling from June 1, 2017. The Board concludes that ratings in excess of 10 percent are not warranted from March 12, 2012; however, 20 percent ratings are warranted from April 29, 2014. In addition, the Board concludes that 40 percent ratings are warranted from February 2, 2016. Each period will be discussed below. A. From March 12, 2012 to April 29, 2014 In an April 2012 rating decision, the AOJ granted service-connection for radiculopathy affecting both lower extremities, assigning a 10 percent rating from March 12, 2012. That decision was based on a March 12, 2012 VA examination of the veteran's thoracolumbar spine during which the Veteran reported pain radiating bilaterally into his buttocks. The March 2012 VA examination does not show symptoms warranting a rating in excess of 10 percent. Mild intermittent pain was noted on examination; however, the examination did not show constant pain, numbness, paresthesias, or dysesthesias bilaterally. The Veteran's reflexes, muscle strength, and sensation were normal on examination. Moreover, the Veteran did not have any atrophy or trophic changes. The Veteran did not use an assistive device. The examiner characterized the Veteran's symptoms as "mild." While not bound by the examiner's characterization, the Board concludes that "mild" accords with the symptoms shown on examination. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In light of the foregoing, a rating in excess of 10 percent is not warranted from March 12, 2012. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. B. From April 29, 2014 to February 2, 2016 The Veteran received a VA examination for his service-connected thoracolumbar spine disability on April 29, 2014. That examination show worsening of the Veteran's radiculopathy affecting both lower extremities that warrants ratings of 20 percent for moderate incomplete paralysis. In the April 29, 2014 VA examination for his service-connected thoracolumbar spine disability, the Veteran's intermittent pain had progressed from mild to moderate. In addition, the Veteran developed mild numbness and mild paresthesias and/or dysesthesias, symptoms not shown in the March 2012 VA examination. The examination also showed muscle strength of 4/5 on hip flexion. The examiner described the Veteran's radiculopathy affecting both lower extremities as "moderate" bilaterally. Again, the Board is not bound by the examiner's assessment; however, it is probative of the increased severity of the Veteran's service-connected radiculopathy affecting both lower extremities. In light of the foregoing, the Board concludes that 20 percent ratings for the bilateral lower extremities are warranted from April 29, 2014. However, a rating in excess of 20 percent is not warranted for the left lower extremity or the right lower extremity during this period of appeal. Sensory testing and reflex testing were both normal on examination in April 2014, and the Veteran's strength was normal in every range of motion other than hip flexion. In addition, the Veteran did not use an assistive devise. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. C. From February 2, 2016 In a statement accompanying his February 2, 2016 VA Form 9, Substantive Appeal, the Veteran stated that his radiculopathy affecting both extremities worsened to the point that he suffered pain so severe it prevented him from putting on his own socks. He also noted that he experienced near constant tingling and numbness his legs and feet. He also reported that he was growing weaker and was no longer able to maintain his physical fitness. June 1, 2017 VA examinations for peripheral nerve conditions and his thoracolumbar spine disability accord with the Veteran's February 2, 2016 statement. These two exams, which were performed by the same VA examiner, document symptoms that more nearly approximate to moderately severe radiculopathy bilaterally. See 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. In both examination reports, the examiner noted severe intermittent pain, moderate constant pain, moderate numbness, and moderate paresthesias and/or dysesthesias. The examiner also noted strength of 4/5 on hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. He had decreased sensation in his lower leg/ankle and foot/toes bilaterally, though sensation was normal for his thigh and knee and upper anterior thigh. The Veteran's reflexes were normal bilaterally. The examiner indicated that the sciatic nerve root was involved bilaterally and characterized the Veteran's symptoms as moderate. The Board concludes that the Veteran's symptoms most closely approximate those warranting 40 percent ratings for moderately severe incomplete paralysis of the sciatic nerve bilaterally from February 2, 2016. The Veteran is competent to describe the symptoms that he has experienced, and the Board concludes that his February 2, 2016 statement is probative evidence showing moderately severe radiculopathy affecting both lower extremities. The June 1, 2017 VA examinations, though conducted more than a year after VA received his statement, accord with the symptoms reported in the Veteran's statement. The June 1, 2017 VA examination showed that intermittent pain had progressed to severe, and his constant pain, numbness, and paresthesias and/or dysesthesias had all progressed to moderate after being evaluated as mild in the April 2014 VA examination. The Veteran also experienced muscle weakness in more ranges of motion during the June 2017 VA examination than he did in April 2014, which is consistent with his statement regarding increased muscle weakness. In an April 2018 VA peripherals nerve conditions examination, the Veteran reported having severe intermittent pain and moderate numbness of the bilateral lower extremities. Muscle strength testing showed active movement against some resistence (4/5 on the muscle strength scale) in bilateral knee extension, ankle plantar flexion, and ankle dorsiflexion. The Veteran did not have any muscle atrophy. The examiner concluded that the Veteran had moderate incomplete paralysis of the bilateral sciatic nerves. In a November 2018 VA peripherals nerve conditions examination, muscle strength testing again showed active movement against some resistence (4/5 on the muscle strength scale) in bilateral knee extension, ankle plantar flexion, and ankle dorsiflexion. The Veteran did not have any muscle atrophy. Results of sensation testing to light touch showed decreased sensation bilaterally. The examiner concluded that the Veteran had mild incomplete paralysis of the bilateral sciatic nerves A July 2019 VA examination documents the continued severity of the Veteran's radicular symptoms despite the examiner's description of his symptoms as "mild." The Veteran's intermittent pain remained severe and paresthesias and/or dysesthesias had progressed from moderate to severe. The Veteran reported muscle weakness in his lower extremities, and his muscle strength on examination showed that it had degraded from 4/5 to 3/5 on knee extension, ankle plantar flexion, and ankle dorsiflexion bilaterally since the June 2017 VA examination. Given this progression of his symptoms, the Board concludes that the preponderance of the evidence weighs in favor of a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerves of both lower extremities from February 2, 2016, the date upon which the Veteran described worsening symptoms that were later confirmed in the June 2017 and July 2019 VA examinations. Ratings in excess of 40 percent are not warranted, however. Pursuant to applicable ratings criteria, a 60 percent rating for severe incomplete paralysis of the sciatic nerve requires marked atrophy. While the Veteran's muscle strength has degraded during the period on appeal, atrophy is not shown in either the June 2017 or the July 2019 VA examination. The Veteran also received VA examinations in April 2018, November 2018, and July 2019. They too note no atrophy on examination. Similarly, the Veteran's VA treatment records and private treatment records do not document the marked atrophy that would support ratings in excess of 40 percent. Accordingly, the symptoms warranting 60 percent ratings are not shown in evidence of record. 2. Entitlement to a Rating in Excess of 30 Percent for Service-Connected Neuropathy of the Left Ulnar Nerve The Veteran contends that he is entitled to a rating in excess of 30 percent for left ulnar nerve paralysis. The Veteran does not contend that he has complete paralysis of the left ulnar nerve. Rather, he contends that his upper extremity neurological symptoms are the same, and he should therefore receive the same 40 percent evaluation for both disabilities. Paralysis of the ulnar nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8516. Under these criteria, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8516. A rating in excess of 30 percent requires evidence of complete paralysis of the left ulnar nerve. None of the VA examinations afforded the Veteran during the period on appeal show complete paralysis of the left ulnar nerve. A July 2018 VA examination shows symptoms more consistent with severe incomplete paralysis of the left ulnar nerve rather than complete paralysis of the left ulnar nerve. The examiner described the paralysis as severe incomplete paralysis, which accords with the assigned 30 percent rating. No muscle atrophy was noted. The Veteran had decreased sensory perception in left forearm and his left hand; however, he retained active movement against some resistance in his left wrist. He was able to spread his fingers, extend his ring finger, and adduct his thumb. The immobility of the left hand that would characterize complete paralysis of the left ulnar nerve and support a 40 percent rating was not shown. Similarly, a November 2018 VA examination for peripheral nerve conditions did not document symptoms supporting a 40 percent rating for complete paralysis of the left ulnar nerve. The examiner described moderate incomplete paralysis of the left ulnar nerve. No atrophy was noted, and the Veteran's left upper extremity did not have any trophic changes. As was the case in the July 2018 VA examination, the Veteran had decreased sensory perception in left forearm and his left hand. He had active movement against some resistance in his left wrist, and retained the ability to spread his fingers, extend his ring finger, and to adduct his thumb. Complete paralysis of the left ulnar nerve is not shown in the November 2018 VA examination. The Board notes that a July 2019 VA examination focused more on the Veteran's service-connected radiculopathy of both lower extremities and did not evaluate the Veteran's left ulnar paralysis. Indeed, it did not even note a diagnosis related to either upper extremity. Thus, the Board concludes that it is not probative evidence regarding the severity of the Veteran's service-connected neuropathy of the left ulnar nerve. In light of the foregoing, the Board concludes that a rating in excess of 30 percent is not shown. See 38 C.F.R. § 4.124a, Diagnostic Code 8516. In reaching this conclusion, the Board credits the Veteran's March 2020 statement contending that his symptoms associated with left ulnar neuropathy are just as severe as those for his right ulnar neuropathy, which evaluated as 40 percent disabling. The difference in the ratings is not a reflection of disparate symptoms, however, and instead reflects the disparate impact of severe incomplete paralysis affecting the right upper extremity versus severe incomplete paralysis affecting the left upper extremity. The basis for disability ratings is the ability of a part of the body to function under the ordinary conditions of daily life. See 38 C.F.R. § 4.10. Given this focus on functionality, certain diagnostic codes, to include Diagnostic Code 8516, distinguish between major extremities and minor extremities. Because the Veteran is right-handed, the functional impact of his service-connected right ulnar neuropathy is more pronounced than the impact of his service-connected neuropathy of the left ulnar nerve. Stated differently, his service-connected severe incomplete paralysis of the left ulnar nerve does not result in a similar degree of uselessness as his severe incomplete paralysis of the right ulnar nerve; therefore, it is evaluated as 30 percent disabling rather than a 40 percent disabling even the symptoms are essentially the same bilaterally. See id. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for incomplete paralysis of the left ulnar nerve. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND The mere passage of time does not render an examination inadequate, Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). However, evidence of worsening symptoms for a service-connected disability may warrant affording a veteran a new VA examination to assess the current severity of a service-connected disability for which an increased rating is sought. 1. Entitlement to a Compensable Rating for Service-Connected Bowel Incontinence The Veteran contends that he is entitled to a compensable rating for service-connected bowel incontinence. The Veteran last received a VA examination to assess his bowel incontinence in February 2019. In a statement accompanying his March 2020 VA Form 9, Substantive Appeal, the Veteran reported that bowel incontinence had worsened. He reported that he needs to go to the washroom due to leakage anywhere from 3 times per day to upwards of 10 times per day because he does not have sphincter control and cannot control it regardless of his efforts to do so. In light of the Veteran's report that his symptoms continue to worsen, the Board concludes that he should be afforded a new VA examination to assess the current severity of his service connect rectal incontinence. 2. Entitlement to a Compensable Rating for Service-Connected Acne with Dermatitis In a statement accompanying his March 2020 VA Form 9, Substantive Appeal, the Veteran reported that his acne manifests as puss-filled cysts on both cheeks, his neck, and his shoulders. He also reported that he has constant redness in his face. While the Veteran did not expressly state that acne with dermatitis had worsened since his most recent VA examination in November 2018, his statement describes symptoms that are worse than those described in the examination. The November 2018 VA examination report describes the Veteran's acne as superficial, and no puss-filled cysts are noted. Given the increased symptoms described in the Veteran's March 2020 statement, the Board concludes that he should be afforded a new VA examination to assess to the current severity of his service-connected acne with dermatitis. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected rectal incontinence. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected acne with dermatitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Douglas M. Humphrey, 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.