Citation Nr: 21031755 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-05 156 DATE: May 24, 2021 ORDER Entitlement to a temporary total evaluation due to hospital treatment in excess of 21 days for a service-connected condition is denied. Entitlement to a disability evaluation in excess of 40 percent for radiculopathy of the left lower sciatic nerve associated with degenerative disc and joint disease of the lumbosacral spine and residuals of a fracture to the L5 vertebral body is denied. REMANDED An evaluation in excess of 10 percent for paroxysmal atrial fibrillation due to mitral valve prolapse is remanded. An evaluation in excess of 20 percent for degenerative disc and joint disease of the lumbosacral spine and residuals of a fracture to the L5 vertebral body is remanded. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to November 10, 2016, is remanded. FINDINGS OF FACT 1. The Veteran is not currently service connected for a substance abuse disorder, and his VA hospitalization from November 5, 2014, to December 3, 2014, was for treatment of his substance abuse disorder. 2. The Veteran's service-connected radiculopathy of the left lower sciatic nerve manifests with symptoms comparable to incomplete paralysis with an overall severity that is moderate in nature. CONCLUSIONS OF LAW 1. The criteria for a temporary total evaluation for a hospital stay in excess of 21 days due to a substance abuse disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.29, 4.30. 2. The criteria for entitlement to an evaluation in excess of 40 percent for service-connected radiculopathy of the left lower sciatic nerve are not met. See 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service from November 1974 to February 1975 and May 1978 to January 1979. The Veteran died in March 2018. The Appellant is the deceased Veteran's mother, and substitution has been granted on these matters. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2015 and June 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran withdrew his request for a hearing in an October 2019 statement. Accordingly, the initial hearing request is considered withdrawn. These issues were previously before the Board in June 2020 when they were remanded for further development. 1. A temporary total evaluation due to hospital treatment in excess of 21 days for a service-connected condition is denied. The Veteran claimed a temporary total evaluation for his hospital stay due to his treatment in a substance abuse program. See December 2014 Fully Developed Claim (requesting 100% convalescent payment due to inpatient treatment from November 5, 2014, to December 3, 2014, for a substance abuse program); see also December 2014 Congressional Letter (stating he just completed 28 days of substance abuse treatment and that he is "supposedly entitled to receive a 100% compensation for the month [he] spent in the hospital") and February 2015 Correspondence (requesting full payment for the month of November 2014); A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established a service-connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days or hospital observation at the Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. The Board notes the Veteran was admitted as inpatient to a VA medical center on November 5, 2014, and medical records indicate the Veteran remained an inpatient there until December 3, 2014. His discharge diagnosis was an alcohol use disorder, nocturia, and chronic hip pain. His was also diagnosed with substance abuse during his stay. The Veteran is not service connected for substance abuse. The applicable regulation provides for a temporary total evaluation in the event of a hospital stay in excess of 21 days for a service-connected disability or condition. 38 C.F.R. § 4.29. Here, the Veteran is not service connected for substance abuse. The Board notes a related regulation, 38 C.F.R. § 4.30, is also inapplicable because it too requires the pertinent medical condition be service connected. As such, the claim for a temporary total evaluation for a hospital stay in excess of 21 days for the Veteran's non-service-connected substance abuse disorder pursuant to 38 C.F.R. § 4.29 is denied as a matter of law. Where the law is dispositive, the claim must be denied based on an absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. DCs in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. An evaluation in excess of 40 percent for radiculopathy of the left lower sciatic nerve associated with degenerative disc and joint disease of the lumbosacral spine and residuals of a fracture to the L5 vertebral body is denied. By way of history, the Veteran submitted a claim for an increased rating for this back disability in February 2015. Based on findings of radiculopathy in an April 2015 VA back examination, the RO, in June 2015, granted service connection for left lower extremity radiculopathy and assigned a 40 percent disability rating under DC 8520 effective February 10, 2015, which is the date the Veteran's increased rating back claim was received. Under DC 8520, a 10 percent evaluation is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent evaluation is assigned for moderate incomplete paralysis; a 40 percent evaluation is assigned for moderately severe incomplete paralysis; and a 60 percent evaluation is assigned for severe incomplete paralysis with marked muscular atrophy. A maximum 80 percent evaluation requires complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The terms "mild," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the 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; Note prefacing DC's 8510 through 8730. In an April 2015 DBQ, the examiner notes the Veteran experienced moderate constant pain, moderate paresthesias and/or dysesthesias, and mild numbness of the left lower extremity. The examiner notes no other signs or symptoms of radiculopathy, and the severity of the Veteran's radiculopathy was documented as moderate. In a November 2016 DBQ, the examiner notes the Veteran experienced moderate intermittent pain of the right and left lower extremities. The examiner found no other signs or symptoms of radiculopathy, and the severity of the Veteran's radiculopathy was documented as mild. The Board finds a disability rating greater than 40 percent for left lower extremity radiculopathy is not warranted. The medical evidence of record reflects the Veteran's left lower extremity radiculopathy was comparable to no more than moderately severe incomplete paralysis of the sciatic nerve. Significantly, the April 2015 VA examiner characterized the Veteran's left lower extremity radiculopathy as moderately severe, and the November 2016 VA examiner characterized the Veteran's left lower extremity radiculopathy as mild. The Veteran's treatment records are not in significant conflict with the VA examinations. In sum, the Board concludes the Veteran's left lower extremity radiculopathy did not manifest by symptomatology that more nearly approximated the criteria for the next higher evaluation under DC 8520, and the claim for an increased rating must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.71a. The Board is sympathetic to the Veteran's lay statements that his disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. REASONS FOR REMAND 1. An evaluation in excess of 10 percent for paroxysmal atrial fibrillation due to mitral valve prolapse is remanded. The Veteran contended his atrial fibrillation is worse than contemplated by his 10 percent rating under DC 7010. Under DC 7010, a 10 percent rating is assigned for supraventricular arrhythmias manifested by permanent atrial fibrillation (lone atrial fibrillation), or one to four episodes per year of paroxysmal atrial fibrillation, or other supraventricular tachycardia documented by ECG or Holter monitor. 38 C.F.R. § 4.104. A 30 percent rating is assigned for paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by an electrocardiogram ("ECG") or Holter monitor. The Board remanded this claim for an opinion because the Veteran contended at various points during the appeal he had more than four episodes per year of atrial fibrillation. VA opinions were obtained in November 2020, January 2021, and February 2021. However, none of the VA opinions address the issue on appeal for this increased rating claim, which is to assess whether the Veteran experienced four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia, which would warrant the next higher rating, 30 percent, under DC 7010. The November 2020 opinion was not completed because the examiner could not review the Veteran's medical records. The January 2021 and February 2021 opinions are insufficient because they are opinions for service connection. As such, a remand is required to obtain an appropriate opinion as to whether the Veteran, at various points during the appeal, had more than four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia. 2. An evaluation in excess of 20 percent for degenerative disc and joint disease of the lumbosacral spine and residuals of a fracture to the L5 vertebral body is remanded. The Board notes the November 2016 VA back examination of record. Flare-ups are noted; however, there are no estimates for the additional loss of range of motion during flare-ups. As a result, a retrospective medical opinion is necessary to capture the severity of the Veteran's limitation of motion of the spine. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period, a retroactive medical evaluation may be warranted). 3. A TDIU prior to November 10, 2016, is remanded. Prior to November 10, 2016, the Veteran's service-connected disabilities did not meet the requirements of 38 C.F.R. § 4.16(a) as he did not have a single service-connected disability ratable at 60 percent or more, or a combined rating of 70 percent or more. As such these issues are inextricably intertwined. Therefore, a remand of the claim for entitlement for TDIU prior to November 10, 2016, is required. The matters are REMANDED for the following action: 1. Obtain an opinion to determine the nature and severity of the Veteran's service-connected atrial fibrillation from February 10, 2014, (one year prior to the filing of the increased rating claim) to March [REDACTED], 2018, (the date of the Veteran's death) as best as can be ascertained from any self-reports from the Veteran documented within the medical record, any clinical records, or other evidence. The examiner is specifically asked to determine whether there is, or has been: (1) paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by ECG or Holter monitor; or (2) permanent atrial fibrillation (lone atrial fibrillation) or one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor from February 10, 2014, (one year prior to the filing of the increased rating claim) to March [REDACTED], 2018, (the date of the Veteran's death).. The examiner should consider and address the Veteran's lay statements regarding his symptomology, specifically to include his April 2015 correspondence where he contends he experienced six episodes of atrial fibrillation in 2014 and had to have cardioversions each time in addition to two more episodes of atrial fibrillation sometime between January 2015 and April 2015. The examiner should comment on the effect the Veteran's atrial fibrillation has on his ability to secure and follow substantially gainful employment prior to November 10, 2016. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 2. Obtain a retrospective opinion from a VA examiner for the Veteran's service-connected back condition. The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the retrospective opinion. The examiner should provide a retrospective opinion for the time period from February 10, 2014, (one year prior to the filing of the increased rating claim) to March [REDACTED], 2018, (the date of the Veteran's death) as best as can be ascertained from any self-reports from the Veteran documented within the medical record, any clinical records, or other evidence to include the April 2015 and November 2016 VA Back Conditions examination reports. Specifically, the examiner is asked to provide a retrospective opinion estimating any additional degrees of limited motion (i.e., flexion) caused by functional loss during a flare-up or after repeated use over time for the time period from February 10, 2014, (one year prior to the filing of the increased rating claim) to March [REDACTED], 2018, (the date of the Veteran's death). If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.