Citation Nr: 21030153 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-42 176 DATE: May 18, 2021 ORDER Subject to the laws and regulations governing monetary benefits, entitlement to a separate 40 percent evaluation, but no higher, for radiculopathy of the right sciatic nerve associated with service-connected degenerative disc disease of the lumbar spine is granted from November 1, 2019. Subject to the laws and regulations governing monetary benefits entitlement to a separate 40 percent evaluation, but no higher, for radiculopathy of the left sciatic nerve associated with service-connected degenerative disc disease of the lumbar spine is granted from November 1, 2019. REMANDED Entitlement to an initial evaluation in excess of 10 percent for service-connected degenerative disc disease of the lumbar spine is remanded. FINDINGS OF FACT The most probative evidence reflects that, throughout the appeal period (from November 1, 2019, to the present), the manifestations of the Veteran's service-connected radiculopathy of the right sciatic nerve were not wholly sensory, and most closely approximated "moderately severe" incomplete paralysis of the nerve, but without marked muscle atrophy or complete paralysis of the nerve. The most probative evidence reflects that, throughout the appeal period (from November 1, 2019, to the present), the manifestations of the Veteran's service-connected radiculopathy of the left sciatic nerve were not wholly sensory, and most closely approximated "moderately severe" incomplete paralysis of the nerve, but without marked muscle atrophy or complete paralysis of the nerve. CONCLUSIONS OF LAW The criteria for a rating of 40 percent, but not higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520. The criteria for a rating of 40 percent, but not higher, for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to December 1989, December 1990 to June 1991, and October 2005 to May 2006. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction. The Veteran expressed disagreement with the assigned initial evaluation, and the present appeal ensued. In June 2016 the AOJ issued a rating decision that increased the initial evaluation assigned for the Veteran's degenerative disc disease of the lumbar spine to 10 percent disabling, effective October 8, 2010 the date of the award of service connection. As this was not a full allowance of the benefits sought, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 38- 39 (1993). The Veteran's appeal seeking an increased rating of the service-connected degenerative disc disease of the lumbar spine was previously before the Board in November 2018, when it was determined that remand was necessary to provide the Veteran with an adequate medical examination. The Veteran's appealed issues enumerated above have been returned to the Board for further appellate consideration. During the pendency of the appeal, in June 2020, the Veteran was granted service connection for left and right lower extremity radiculopathy, within the scope of his claim for an increased rating for degenerative disc disease of the lumbar spine. The issue of entitlement to an increased rating for radiculopathy was determined during the scope of the Veteran's existing claim for an increased rating for his degenerative disc disease of the lumbar spine, the Board has jurisdiction to address the ratings for associated radiculopathy without requiring a separate notice of disagreement (NOD) as to the radiculopathy ratings. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Vet. App. Apr. 16, 2021). Entitlement to an initial evaluation in excess of 10 percent for service-connected radiculopathy of the right sciatic nerve Entitlement to an initial evaluation in excess of 10 percent for service-connected radiculopathy of the left sciatic nerve Note (1) under the General Rating Formula for Diseases and Injuries of the Spine provides that any associated objective neurologic abnormalities, such as radiculopathy of the legs associated with the service-connected low back disability, should be separately evaluated under an appropriate Diagnostic Code. Under Diagnostic Code 8520, complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the nerve warrants a 60 percent evaluation if it is severe with marked muscular atrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Court held in Miller v. Shulkin, 28 Vet. App. 376 (2017), that the language of 38 C.F.R. § 4.124a provides for a maximum 20 percent rating for peripheral neuropathy when the involvement is wholly sensory. Pursuant to 38 C.F.R. § 4.123, however, the maximum rating that may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis, i.e., no more than 40 percent. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the 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. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of 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 Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id. at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." Analysis The Board notes that the Veteran's was diagnosed with bilateral lower extremity radiculopathy in a November 2019 VA examination. Accordingly, the Veteran's disability is currently awarded a 10 percent rating according to Diagnostic Code 8520. This neurologic symptomatology and its relation to the Veteran's degenerative disc disease of the lumbar spine was not noted by VA examiners during the Veteran's June 2012 VA examination. As such, the question before the Board is the severity of the Veteran's radiculopathy of the legs associated with his service-connected low back disabilities. The November 2019 VA examiner noted that the Veteran experiences mild bilateral radiculopathy without muscle atrophy. However, the examiner documented the Veteran's moderate right lower extremity pain, paresthesias, and numbness, and the Veteran's severe left lower extremity intermittent pain, paresthesias, and numbness. Critically, the November 2019 VA examiner noted that the Veteran's symptoms require that he use an assistive desk to allow the Veteran to stand while working at his desk, as prolonged sitting causes extreme neurological symptoms in his legs, as outlined above. The Board finds that this notation is critical in the context of the present appeal, as it makes clear that the Veteran experiences functional impairment due to his service-connected radiculopathy of the legs. The Board concludes that the functional impairment noted in the November 2019 VA examination report is tantamount to symptomatology more than "wholly sensory." Armed with the above conclusion, the Board notes VA's obligation to resolve all doubt in the Veteran's favor. In doing so, the Board concludes that the evidence of record reflects neurological symptoms of the legs beyond that which is "wholly sensory, and that more closely approximates moderately severe radiculopathy of the both legs associated with the Veteran's low back disabilities throughout the pendency of the appeal. This finding meets the criteria for separate 40 percent evaluations under Diagnostic Code 8520. The Board has considered whether further increased evaluations are warranted; however, there is no indication, to include from the Veteran, that his neurologic symptoms of the lower extremities result in muscular atrophy, marked or otherwise, or complete paralysis of either sciatic nerve resulting in symptoms such as foot drop or dangle. In sum, the Board concludes that the criteria for separate 40 percent evaluations, but no higher, for moderately severe incomplete paralysis of the left and right sciatic nerves associated with the Veteran's service-connected low back disabilities is warranted throughout the appeal period. REASONS FOR REMAND Entitlement to an evaluation in excess of 10 percent for service-connected degenerative disc disease of the spine is remanded. The Veteran was provided a VA back conditions examination, as per the Board's November 2018 remand; however, the Board concludes that such is inadequate for the purpose of readjudicating the Veteran's appeal because the VA examiner did not quantify the increased limitation of motion of the spine during a flare-up of symptoms, as is necessary under Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). The same is true of the June 2012 VA back conditions examination. In light of above, a remand is necessary in order to ensure that the Veteran is provided a VA examination which adequately describes the frequency, severity, and duration of the symptoms of the Veteran's degenerative disc disease of the lumbar spine, contemporaneously and retrospectively, to include during a flare-up of symptoms. The matters are REMANDED for the following action: 1. The AOJ must obtain and associate with the file all updated records of VA treatment records. 2. The AOJ must contact the Veteran and request that he complete a release for any post-service private treatment records that are outstanding and pertinent to the issues remanded by the Board that are not already part of the record. In these releases, the Veteran should provide a time period in which he was treated at each facility 3. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate his service-connected degenerative disc disease of the lumbar spine. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency, severity, and duration of the manifestations of the Veteran's degenerative disc disease of the lumbar spine. In addition, the VA examiner must address the following: - Provide range of motion findings for the lumbar spine during any flare-ups of symptoms contemporaneously and retrospectively, the latter only for the time of the June 2012 and November 2018 VA examinations. *Regarding the requested retrospective findings concerning the lumbar spine, the examiner is encouraged to discern such from retrospective statements from the Veteran and treatment records contemporaneous with the prior VA examinations. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must readjudicate the Veteran's pending issues in light of any additional evidence added to the record. If any benefit sought on appeal remains is not granted to the fullest extent, the Veteran and his private attorney should be furnished with a copy of the readjudication and afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. W. Morgan, 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.