Citation Nr: 21031226 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-35 238A DATE: May 20, 2021 ORDER Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy prior to December 14, 2011 is denied. Entitlement to a rating of 20 percent, but no more, for right lower extremity radiculopathy from December 14, 2011 is granted. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy prior to December 14, 2011 is denied. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy from December 14, 2011 is denied. REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. FINDINGS OF FACT 1. Prior to December 14, 2011, the Veteran's right lower extremity radiculopathy manifested as only mild, incomplete paralysis of the sciatic nerve; from that date, the condition manifested as moderate, incomplete paralysis of the sciatic nerve. 2. Prior to December 14, 2011, the Veteran's left lower extremity radiculopathy manifested as only mild, incomplete paralysis of the sciatic nerve; from that date, the condition manifested as moderate, incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right lower extremity radiculopathy have not been met prior to December 14, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8599-8520. 2. The criteria for a disability rating of 20 percent, but no more, for right lower extremity radiculopathy have been met from December 14, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8599-8520. 3. The criteria for a disability rating in excess of 10 percent prior to December 14, 2011, and 20 percent thereafter, for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8799-8720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to September 1991. These matters were last before the Board in February 2020, whereupon they were remanded to the agency of original jurisdiction (AOJ) for further development of the record. Following the issuance of a January 2021 supplemental statement of the case continuing the denial of all four issues, the case was returned to the Board for its adjudication. As a reminder, the Veteran testified at a November 2019 hearing before the undersigned Veterans Law Judge. The Board has considered whether a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the Veteran during the pendency of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that VA must address the issue of entitlement to TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. The Board notes that the Veteran reported in a July 2011 correspondence that he was terminated from his job as due to complications from his lumbar spine disorder. The AOJ requested additional information from the Veteran, to include asking him to submit a formal application for entitlement to TDIU. The Veteran never responded to those requests, and the AOJ formally denied a claim for TDIU in a March 2013 rating decision. To date, the Veteran has never reiterated his contention that he is unable to work due to his service-connected disabilities, and he never contested the denial of TDIU in the March 2013 rating decision. A review of available VA treatment records as well as correspondence from the Veteran and his hearing testimony does not reflect that he has ever asserted that the symptomatology associated with his right and left lower extremity radiculopathy has precluded him from securing and following substantially gainful employment. Moreover, the various VA examiners who evaluated the severity of the right and left lower extremity radiculopathy did not find that the conditions together had such a severe impact on the Veteran's occupational functioning during the appeal period that he was precluded from securing and following substantially gainful employment. Accordingly, a claim for TDIU has not been raised by the record. Increased Rating for Left and Right Lower Extremity Radiculopathy The Veteran is service connected for left and right lower extremity radiculopathy, with both lower extremities impacting the sciatic nerve. The left lower extremity radiculopathy is rated as 10 percent disabling prior to December 14, 2011, and 20 percent disabling thereafter. The right lower extremity radiculopathy is rated at 10 percent disabling for the entirety of the appeal. The Board will consider both conditions together as the evidence in support of both is largely the same. Entitlement to an increased rating for the left lower extremity radiculopathy was raised in a September 17, 2010 claim; therefore, the Board will restrict its appeal to the period of time up to one year prior to the date of claim (that is, from September 17, 2009). Similarly, as the increased rating claim for the right lower extremity radiculopathy stems from the Veteran's appeal of the rating assigned for the condition, and that service-connection grant was established as secondary to the Veteran's September 17, 2010 claim seeking an increased rating for his low back disorder (not currently on appeal), the same appellate period applies as would apply for the low back disorder, that is, up to one year prior to September 17, 2010 (thus, September 17, 2009). 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). 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. 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. The rating for the left lower extremity radiculopathy was assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8799-8720. Under 38 C.F.R. § 4.27, unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. 8799 refers to a neuralgia of a peripheral nerve, with 8720 specifying neuralgia of the sciatic nerve. Diagnostic Code 8720 governs neuralgia of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8720. Neuralgia of the sciatic nerve, characterized usually by a dull and intermittent pain, is rated on the scale provided for paralysis of the sciatic nerve pursuant to Diagnostic Code 8520, which provides that 10, 20, 40, and 60 percent ratings are assigned depending on whether the incomplete paralysis of the extremity is mild, moderate, moderately severe or severe with marked muscular atrophy, respectively. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Complete paralysis of the extremity, in that the foot dangles and drops, no active movement possible of muscles below the knees, flexion of the knee is weakened or (very rarely) lost, warrants an 80 percent rating. Id. The rating for the right lower extremity radiculopathy was assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8599-8520. Similar to the above, the use of the hyphenated diagnostic code here indicates that the right lower extremity radiculopathy is rated by analogy to neuralgia of a peripheral, with 8520 specifying incomplete paralysis of the sciatic nerve. In defining the distinction between the 20 and 40 percent rating, 38 C.F.R. § 4.124a provides that the rating should be either for the mild or at most the moderate degree if the involvement of the nerves is wholly sensory. The severity of the bilateral lower extremity radiculopathy was first evaluated during the appeal period in a March 2011 thoracolumbar spine disability benefits questionnaire prepared by a Dr. J.W. Dr. J.W. noted that the Veteran experienced pain and moderate weakness radiating into his lower extremities. The Veteran endorsed experiencing flare-ups of additional symptomatology, during which he regularly utilized a cane to assist with ambulation as the numbness in his lower extremities made it difficult otherwise. Dr. J.W. ultimately found that only the Veteran's right sciatic nerve was impacted by the thoracolumbar spine condition. In an addendum report dated in June 2011, Dr. J.W. clarified that the Veteran's lower extremity neurological symptomatology was attributable to intervertebral disc syndrome. The severity of the bilateral lower extremity radiculopathy was next evaluated in a December 2011 disability benefits questionnaire, during which the Veteran reported that he experienced intermittent pain through the entire posterior aspect of the bilateral lower extremities. According to the Veteran, he was experiencing a flare-up of lower extremity radicular pain, which he characterized as having "concrete boots" on his feet. After an in-person evaluation, the examiner did not find any objective evidence of sensory impairment but did note that the Veteran experienced severe lower extremity pain bilaterally. It was the examiner's impression that the radiculopathy was of moderate severity bilaterally. In a September 2012 disability benefits questionnaire, the Veteran reported experiencing shooting pain down the anterior aspect of the left thigh as well as occasional flashes of pain to the posterior aspect of the left lower extremity as well as the right paraspinal region. In-person testing revealed some loss of ankle reflexes as well as a decrease in sensation of the left foot and toes. The examiner noted symptoms of moderate left lower extremity pain and mild numbness. In summation, the examiner diagnosed left lower extremity radiculopathy of a moderate severity but no right lower extremity radiculopathy. During a November 2015 VA lumbar spine examination, the Veteran once again reported experiencing lower extremity weakness, and exhibited considerable difficulty in manipulating his feet, such that it took him six minutes to remove his socks and shoes. Although reflex and sensory testing did not reveal any abnormalities, the examiner noted symptoms of mild pain, mild paresthesias, and mild numbness of the lower extremities bilaterally. As such, it was the examiner's impression that the bilateral lower extremity radiculopathy was only mild in severity. More recently, in a January 2020 VA spine examination, sensory testing revealed decreased sensation in the upper anterior thigh and knee bilaterally. The examiner noted symptoms of constant moderate pain, moderate paresthesias, and moderate numbness of the lower extremities bilaterally, and found that the radiculopathy was of moderate severity bilaterally. Pursuant to the Board remand instructions, the severity of the bilateral lower extremity radiculopathy was evaluated in a March 2020 VA spine examination. Although reflex and sensory testing did not reveal any abnormalities, the examiner noted symptoms of mild intermittent pain and mild paresthesias of the lower extremities bilaterally. In summation, the examiner found that the radiculopathy was only of mild severity bilaterally. A review of post-service medical records reflects that the Veteran has sought treatment for bilateral lower extremity radicular symptomatology for the entirety of the appeal period. Outpatient records dating from the beginning of the appeal period show that the Veteran was receiving periodic epidural injections in 2009 and in 2010 to relieve lower extremity pain. In a February 2010 outpatient note the Veteran confirmed that he was experiencing lower extremity numbness bilaterally. A February 2011 neurological testing report shows that the Veteran exhibited active partial denervation affecting only the left lower extremity muscles. Thereafter, a surgical discharge note from April 2011 shows that the Veteran underwent a lumbar laminectomy. A May 2015 pain center consultation report reflects that the Veteran reported experiencing significant bilateral radicular symptoms extending down the left side of his leg down to his knee. According to the Veteran, these symptoms prevented him from walking. However, in a June 2015 outpatient record, the Veteran reported that he did not experience any numbness or tingling in the extremities, although he did endorse experiencing shooting pains down both of his legs. Subsequent records show that lower extremity radiculopathy continued to be listed as an active problem. Upon review of the record, the Board finds that a rating in excess of 10 percent for left lower extremity radiculopathy prior to December 14, 2011, and in excess of 20 percent therefrom, is not warranted. The 20 percent rating was assigned pursuant to the findings of the VA examiner on that date, who evaluated the left lower extremity radiculopathy as being moderate in severity. Before this examination, the Board finds no evidence to suggest that the left lower extremity radiculopathy was anything other than mild in severity. Indeed, the Board highlights that Dr. J.W. in the March 2011 disability benefits questionnaire submitted by the Veteran found that he only exhibited lower extremity radiculopathy on his right side, and not his left. VA medical records dating from prior to the date of the December 2011 VA examination also do not suggest that the Veteran was experiencing anything more than intermittent lower extremity pain and numbness. From December 14, 2011, there is no evidence in the claims file which suggests that the Veteran experiences any additional symptomatology that is more than sensory in nature, which would be necessary to warrant a rating in excess of the currently assigned 20 percent. With regard to the right lower extremity radiculopathy, the Board notes that the December 2011 VA examiner found that the radiculopathy was moderate in severity on both sides, and so a 20 percent rating is warranted for the right lower extremity radiculopathy from the date of the examination in order to match the rating already assigned for the left lower extremity radiculopathy. That being said, for reasons similar to those detailed above, the Board does not find that the evidence supports assigning a rating in excess of 10 percent prior to the date of the December 2011 VA examination or in excess of 20 percent therefrom for the right lower extremity radiculopathy. While Dr. J.W. noted pain and moderate weakness of the right lower extremity, no other symptoms were described, and overall the Board finds that the disability was closer to mild than to moderate in degree. Accordingly, a rating of 20 percent, but no more, for right lower extremity radiculopathy is warranted only from December 14, 2011. REASONS FOR REMAND Entitlement to service connection for left and right knee conditions is remanded. The Board in its February 2020 decision remanded the issues of entitlement to service connection for left and right knee conditions in order to afford the Veteran a VA examination to evaluate whether he had separately diagnosable left and/or right knee conditions, and, if so, the likelihood that such conditions were attributable to service, to include as secondary to a service-connected disability. In a March 2020 VA examination, a VA examiner confirmed that the Veteran did have left and right knee conditions, characterized as knee strains. Thereafter, in addendum opinions dated in January 2021, the same VA examiner found that it was less likely than not that the left and/or right knee condition was incurred in or otherwise attributable to service, and supported that finding by reference to the lack of complaints of or treatment for knee symptomatology in service. In addition, the VA examiner in January 2021 also opined that it was less likely than not that a left or right knee condition was secondary to a service-connected disability. In support thereof, the examiner referred to medical literature for the finding that injury to one extremity would not have a significant impact on an uninjured musculoskeletal structure. On this basis, the examiner determined that there was no indication that the Veteran's back pain or radicular symptoms would induce strain on the knees, especially in light of the fact that the Veteran has acknowledged that his service-connected disabilities reduce his overall physical activity altogether. The examiner further highlighted that the Veteran himself attributed his knee pain to his service. Finally, the examiner also stated that there was no evidence that the Veteran's knee pain had been aggravated beyond its natural progression. The Board cannot rely on the opinions of the March 2020 VA examiner, and so remand is necessary in order to secure a further addendum opinion that is responsive to the Board's queries regarding the likely etiology of the left and right knee conditions. To begin, although the examiner addressed the potential impact of the musculoskeletal impairment stemming from the back condition, it is unclear whether the examiner considered the impact of the neurological impairment stemming from the lower extremity radiculopathy. Furthermore, it does not appear that the examiner utilized the correct standard in evaluating whether the left or right knee condition is secondary to a service-connected disability. Rather than discuss if the left or right knee condition was aggravated by the service-connected low back condition or lower extremity radiculopathy, the examiner stated only that the Veteran's back pain and/or radicular symptoms would not "induce strain on the knees". The Board does note that the examiner did discuss aggravation with regard to the Veteran's service-connected erectile dysfunction. However, this does not fulfill the Board's entire remand instructions. A new opinion is therefore necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Provide the claims file to the VA examiner who provided the January 2021 addendum opinions, or to another qualified VA medical professional if that individual is not available, for the purpose of eliciting a further addendum opinion as to the likely etiology of the left and right knee conditions. The entire claims file, including this REMAND, must be made available to the chosen examiner, and that individual must indicate review of the claims file prior to setting forth any opinion. The chosen examiner must set forth an opinion as to whether it is it at least as likely as not (a 50 percent probability or higher) that the left and/or right knee condition had its onset during service or is otherwise related to active service. In addition, irrespective of the answer to the above, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that one or both of the knee conditions was caused or aggravated by one or more service-connected disabilities (as listed in an January 2020 rating decision). The examiner must discuss the possibility that either condition on appeal is attributable to each service-connected disability, to include whether the knee condition in question was aggravated by a service-connected disability (defined as any increase in disability). If the opinion is that a service-connected disability or combination of service-connected disabilities aggravated one or both of these conditions, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. All provided opinions must be supported by complete rationale that considers and discusses both the lay and medical evidence of record. 2. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, secure an addendum. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.