Citation Nr: 21029258 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-03 932A DATE: May 13, 2021 ORDER A disability rating in excess of 20 percent for left lower extremity lumbar radiculopathy affecting the sciatic nerve is denied. A disability rating in excess of 20 percent for right lower extremity lumbar radiculopathy affecting the sciatic nerve is denied. REMANDED Entitlement to a disability rating higher than 10 percent for post-traumatic scar, status-post injury of left orbital area ("eye scar"), rated under Diagnostic Code 7800, is remanded. FINDING OF FACT The Veteran's radiculopathy affecting the sciatic nerves of the bilateral lower extremities was manifested by moderate incomplete paralysis, but not moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for radiculopathy affecting the sciatic nerves of the left lower extremity have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10, 4.124(a), Diagnostic Code 8720. 2. The criteria for a disability rating in excess of 20 percent for radiculopathy affecting the sciatic nerves of the right lower extremity have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10, 4.124(a), Diagnostic Code 8720. REASONS AND BASES FOR FINDING AND CONCLUSIONS At the outset, the Board recognizes that the Veteran is separately rated for radiculopathy affecting the femoral nerves of the bilateral lower extremities under Diagnostic Code 8726 and is rated separately for left eye scar under Diagnostic Code 7804. As the Veteran did not appeal or otherwise contest the ratings assigned in the October 2018 Board decision, these issues are not before the Board and will not be addressed. The Veteran testified before the undersigned Veterans Law Judge in a May 2018 video conference hearing. A transcript of that hearing has been associated with the file. The Board remanded the matters twicein April 2020 and August 2020, in compliance with the terms of the October 2019 joint motion for partial remand (JMPR). VA examinations were performed in compliance with the directives, but unfortunately the medical opinions provided for the eye scar confuse the record and an additional remand for the increased rating claim for eye scar disability is needed. See Stegall v. West, 11 Vet. App. 268 (1998). This will be discussed below. With respect to the increased rating claims for lumbar radiculopathy affecting the sciatic nerve of the bilateral lower extremities, the Board finds that the remand directives have been substantially complied with and therefore will proceed with that appeal. Increased Rating The Veteran's radiculopathy affecting the sciatic nerves of the bilateral lower extremities is rated under Diagnostic Code 8720, which governs diseases affecting the sciatic nerves on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a. For the entire period on appeal, he has been assigned 20 percent disability ratings. Under Diagnostic Code 8720, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted if the incomplete paralysis is severe with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis evidenced by the foot dangling and dropping, no possible active movement below the knee, and weakened or lost flexion of the knee. 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 given with each nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. An introductory note to the rating schedule for diseases of the peripheral nerves indicates that where the involvement is wholly sensory, the rating should be for the mild, or at most moderate, degree. 38 C.F.R. § 4.124a. The Board notes that words such as mild, moderate, and severe as used in the various diagnostic codes are not defined in the rating schedule. The use of these terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. 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. The Veteran contends that the radiculopathy in each lower extremity deserves higher ratings. Neither the Veteran, nor his representative have provided any information regarding why and how they feel the radiculopathy symptoms warrant higher ratings. During the February 2018 VA Back Disability Benefits Questionnaire (DBQ) examination, the VA examiner noted radicular pain and or symptoms due to radiculopathy. He noted that it affects the Veteran's left and right lower extremities, describing the intermittent pain as moderate on both sides and the paresthesias and or dysesthesias as moderate on both sides. Numbness on both sides was noted as moderate with no other signs of or symptoms of radiculopathy. The nerve roots involved were listed as L2/L3/L4 (femoral nerves) and L4/L5/S1/S2/S3 (sciatic nerves). The severity for both sides was described as moderate. The Veteran reported back pain, describing swelling, aching, and sharp pain all the way up to his neck down to his toes. He described flare-ups as being unable to do any lifting, walking, or running for long periods of time. During the October 2020 VA Peripheral Nerves Condition DBQ examination, the examiner listed a 1992 diagnosis of lumbar radiculopathy affecting the sciatic nerve of the bilateral lower extremities. The Veteran described his symptoms as sharp, with a burning and numbness that goes down his legs. Prolonged sitting would cause his legs to go numb. His symptoms attributable to any peripheral nerve conditions were noted. The constant pain of the left and right lower extremities was described as moderate, there was no intermittent pain, and the paresthesias and or dysesthesias was described as severe on both sides. The level of severity of the incomplete paralysis of the sciatic nerve of left and right lower extremities was noted as mild. During the December 2020 VA Peripheral Nerves Condition DBQ examination, the examiner listed a 2010 diagnosis of lumbar radiculopathy affecting the sciatic nerve of the bilateral lower extremities. The Veteran described his symptoms as a sharp shooting pain in his back which sometimes goes into the right and left buttock. He described feeling as though he has a knot in his back and not being able to sit or stand or walk for prolonged periods of time. His symptoms attributable to any peripheral nerve conditions were noted. The constant pain of the left and right lower extremities was described as mild, there was no intermittent pain or paresthesias and or dysesthesias on either side. Numbness was described as mild on both sides. The level of severity of the incomplete paralysis of the sciatic nerve of left and right lower extremities was noted as moderate. As the record did not show or raise a diagnosis of radiculopathy prior to January 2018 and the intent to file was submitted January 2018, that is when the appeal period commences. After review of the evidence, the Board finds that the most probative evidence of record does not show moderately severe incomplete paralysis of the sciatic nerves, and therefore ratings in excess of 20 percent are not warranted at any time during the appeal period. The Board acknowledges that in the October 2018 JMPR the parties agreed that the Board failed to provide adequate reasoning as to why they found the level of severity of the bilateral lower extremities of the sciatic nerve to be "moderate," especially when the February 2018 Back DBQ did not provide the option of describing the level of severity as "moderately severe." As such, the Board will analyze this report specifically as well as each examination report of record, and then provide an overall analysis regarding the evidence as a whole when assessing the current level of severity of the radiculopathy of the sciatic nerve of the left lower extremity and the radiculopathy of the sciatic nerve of the right lower extremity. When looking at the February 2018 VA Back DBQ examination report, the severity of the Veteran's radiculopathy of the bilateral lower extremities was shown to be moderate. The intermittent pain, the paresthesias and or dysesthesias, the numbness, as well as the severity of the sciatic nerves were noted as moderate. When assessing the evaluation of the radiculopathy, the examiner checked off the box, to indicate "moderate." As referenced in the JMPR, the examination report does not have the option of "moderately severe." Notwithstanding that fact, the February 2018 VA examiner did not provide any language in the report to indicate that the lack of the "moderately severe" language in the report hindered his ability to accurately assess the Veteran's level of severity. Also, of note, there is a section of the report titled "Remarks" wherein the examiner will add any information needed to provide an adequate report. The only additional information added to this section states that the Veteran's low back disability led to the radiculopathy. There is no additional language in the report to describe the severity of the radiculopathy, let alone to imply that the assessment of the severity level as moderate is inaccurate. Therefore, the Board concludes that the February 2018 VA examination report is adequate and illustrates that the Veteran's radiculopathy of the bilateral lower extremities is moderate. Upon review of the October 2020 VA Peripheral Nerves Condition DBQ examination report, the severity of the Veteran's radiculopathy of the bilateral lower extremities was shown to be moderate. The constant pain was moderate, the paresthesias and or dysesthesias was severe, and the level of severity of the incomplete paralysis of the sciatic nerve was mild. Although the paresthesias and or dysesthesias was noted as severe, when specifically addressing the level of severity of the sciatic nerves the VA examiner, after examining the Veteran in person, found the severity to be mild. Although this report is more indicative of a 10 percent rating, resolving reasonable doubt in favor of the Veteran the Board finds that viewing the report as a whole, to include the Veteran's reporting of burning and numbness, that it supports a moderate level of severity. When looking at the December 2020 VA Peripheral Nerves Condition DBQ examination report, the severity of the Veteran's radiculopathy of the bilateral lower extremities was shown to be moderate. The constant pain and numbness were mild. There was no intermittent pain or paresthesias and or dysesthesias on either side. The level of severity of sciatic nerves was moderate. Despite the pain and numbness being described as mild, the VA examiner concluded that the level of severity of the sciatic nerves as moderate. Therefore, the Board concludes that this report supports illustrates that the Veteran's radiculopathy of the bilateral lower extremities is moderate. The preponderance of the evidence is against a finding supporting a higher rating under applicable diagnostic criteria under the Diseases of the Peripheral Nerves and Diagnostic Codes 8720 and 8520. As explained above, all the VA examination reports of record reflect a moderate level of severity. At no time during the appeal period has he had moderately severe paralysis of the sciatic nerves, and this is consistent with the lay and medical evidence of record. Therefore, a 40 percent disability for sciatic nerves is not warranted. Also, of note, as stated above, the October 2020 VA examination report on its face is more in line with a mild level of severity, but in favor to the Veteran the Board has concluded it more supports the current 20 percent rating. Although the Veteran is competent to describe his symptoms, he is not competent to determine whether his radiculopathy symptoms rise to a level warranting higher disability ratings. He has not been shown to have specialized medical knowledge. Additionally, as stated above, no statement has been provided to illustrate what specific symptoms of the Veteran's radiculopathy warranted higher ratings. In arriving at this conclusion, the Board understands his belief that his symptoms warrant disability ratings higher than 20 percent, but finds the Veteran is not competent to determine whether his radiculopathy meets the criteria for a higher rating. Moreover, the Board finds that the VA examinations far outweigh the Veteran's belief that his symptoms of radiculopathy of his bilateral lower extremities warrant ratings higher than 20 percent. In sum, the Board finds that the preponderance of the evidence is against initial disability ratings in excess of 20 percent for the Veteran's radiculopathy affecting the sciatic nerves of the left and right lower extremities. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND As referenced above in the introduction, the Board remanded the matters twice, most recently in August 2020. There has not been substantial compliance with the remand directives and the increased rating claim for eye scar must be remanded again. An adequate opinion is needed regarding the May 2012 VA Eye Conditions DBQ examination report. In this report the examiner indicated that the Veteran's scar had visible or palpable tissue loss. Given the other DBQs of record that clearly stated there was no visible or palpable tissue loss, a clarification opinion of the May 2012 VA examination report is required. Opinions were provided in October 2020, December 2020, and in February 2021. Unfortunately, these opinions are inadequate and cause further confusion as to what symptoms are present. The RO assigned a 10 percent disability rating under Diagnostic Code 7800 for the eye scar based on one characteristic of disfigurement (scar at least one-quarter inch wide at widest part). Under Diagnostic Code 7800 a higher rating of 30 percent is warranted if there is visible or palpable tissue loss with two or three characteristics of disfigurement. As such, the issue as to whether the Veteran's eye scar had visible or palpable tissue loss at any time during the appeal period is critical when assessing the current level of severity. A VA Advanced Practice Registered Nurse (APRN) provided an opinion in October 2020. She opined that it is least as likely as not that the scar was erroneously described in the 2012 examination. The rationale stated was that the subsequent exams did not show evidence of any indention or visible tissue loss. This opinion is inadequate as it is wholly conclusory and fails to address the specific questions posed in the remand directives. A VA Medical Doctor (M.D.) provided an opinion in December 2020. In response to the question that asked for clarification of what the previous examiner's intention was when they checked off the box indicating visible or palpable tissue loss, the VA examiner responded, "probably in error." The rationale provided was, "I see no tissue loss." In response to the question as to how and why an examiner would have described the scar as such to include whether it could have been misdiagnosed, erroneously described, or otherwise resolved, the VA examiner responded, "It may have appeared differently at that time 8 years ago." This opinion is inadequate as use of "probably in error" is vague and speculative. See Polovick v. Shinseki, 23 Vet. App. 48. 54 (2009) (a medical opinion is speculative when it uses equivocal language such as "may well be," "could," or "might"). Additionally, in the same document this examiner provided an opinion in complete contrast to his opinion where he opined that the May 2012 VA statement was erroneous. He implied that the Veteran's eye scar may have had visible or palpable tissue loss in May 2012, as it appeared differently eight years prior. The same VA M.D. provided an additional opinion in February 2021. The Board did not request an opinion regarding the findings of the October 2020 VA examination report, but the February 2021 VA M.D. provided an opinion. The VA examiner opined that the October 2020 findings that the Veteran's scar was unstable and painful was in error. The rationale stated was that all other exams since 2012 found a stable, non-tendered healed scar, which originated in 1991 and has not changed. This opinion has provided more confusion as to the current level of severity. The examiner's opinion that the scar has not changed and therefore not unstable or painful is contrary to a review of the file and completely contradicts the opinion this same examiner provided in December 2020. First, the Veteran provided competent, credible testimony that his scar is painful and based on the totality of the evidence the Board assigned a separate rating of 10 percent under Diagnostic Code 7804. Also, in December 2020 the examiner stated that the Veteran's scar may have appeared different eight years prior, but then concluded in February 2021 that the Veteran's scar has remained unchanged since 1991. For all these reasons, the Board finds this opinion to be inadequate. Therefore, the matter must be remanded in order to obtain adequate medical opinions to assess the current level of severity of the Veteran's eye scar disability. Again, the Board will request that the efforts be made to get the addendum opinion from the May 2012 VA examiner. If that examiner is unavailable the Board will request an independent medical opinion. The matter is REMANDED for the following action: 1. Efforts should be made to locate the VA examiner who performed the May 2012 VA Eyes Condition DBQ. Request clarification opinions from this examiner. Request that the examiner provide detail to clarify what his intention was when he checked off the box indicating visible or palpable tissue loss. The examiner should also describe what he meant when he described an indented scar around orbital rim in superior temporal area in the notation section of the report. 2. If the May 2012 VA examiner is not available, schedule the Veteran for an examination from an appropriate medical professional, preferably with a dermatologist or similar medical professional to determine the current nature and severity of his left eye scar. 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. Additionally, the examiner is asked to perform/provide unretouched color photographs. Review of the entire file is required; however, attention is invited to the May 2012 VA Eyes Condition DBQ, describing the left eye scar as having visible or palpable tissue loss and an indented scar around orbital rim in superior temporal area (VBMS, document labeled VA examination, receipt date May 23, 2012, pg. 13 of 27). The examiner is requested to specifically comment on the May 2012 VA examination report and opine as to whether, given the current level of severity of the Veteran's left eye scar, it would be reasonable to describe the scar as having visible or palpable tissue loss and an indented scar around orbital rim in superior temporal area in 2012. If the examiner finds that it is not reasonable to have reached such a conclusion, he/she is requested to provide an opinion as to how and why an examiner would have described the scar as such, to include whether it could have been misdiagnosed, erroneously described, or otherwise resolved. All opinions and conclusions must be supported by a complete rationale. 3. The AOJ should ensure that the examiner provides all information required for rating purposes. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Talamantes, 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.