Citation Nr: 21032450 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-34 221 DATE: May 27, 2021 ORDER Entitlement to an initial rating of 20 percent, but no higher, for radiculopathy of the left lower extremity (LLE) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's LLE radiculopathy was manifested by moderate incomplete paralysis. CONCLUSION OF LAW The criteria for an initial rating of 20 percent, but no higher, for LLE radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1974 to July 1994. The Veteran appealed a September 2014 rating decision by the Agency of Original Jurisdiction (AOJ). In June 2019, the Board of Veterans' Appeals (Board) remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives regarding LLE radiculopathy. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A Board hearing was held in November 2018. A transcript is of record. When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Diagnostic Code 8520 provides that mild incomplete paralysis warrants a 10 percent evaluation, moderate incomplete paralysis warrants a 20 percent evaluation, moderately severe incomplete paralysis warrants a 40 percent evaluation, severe incomplete paralysis with marked muscular atrophy warrants a 60 percent evaluation, and complete paralysis warrants an 80 percent evaluation. The August 2014 VA examination report regarding the back noted radiating pain and numbness into the left leg, mild intermittent pain, moderate paresthesias and/or dysesthesias, mild numbness, and overall mild radiculopathy symptoms. The Veteran argued the August 2014 VA examination was not adequate because the examiner rushed through the examination. See November 2018 Board Hearing Tr. at 6. The January 2020 VA examination report regarding nerves noted lumbar sciatica in the left leg that continues unchanged over the years, shooting sharp pain with tingling and numbness, moderate intermittent pain, moderate paresthesias and/or dysesthesias, moderate numbness, and overall moderate incomplete paralysis. The January 2020 VA examination clearly noted moderate radicular symptoms and that symptoms have been consistent over the years. The August 2014 VA examination report additionally noted moderate paresthesias. Overall, the August 2014 VA examination focused on the Veteran's back condition whereas the January 2020 VA examination focused on the Veteran's radicular symptoms. As such, the Board finds Veteran warrants a 20 percent rating for moderate incomplete paralysis for the entire period on appeal. A higher rating would require a there to be moderately severe paralysis. While this term is not specifically defined in the regulations, it would be expected to have lesser manifestations of severe incomplete paralysis, which must be accompanied with marked muscular atrophy. The Veteran has not been found to have muscular atrophy and medical evidence does not demonstrate or note severe radicular symptoms in the Veteran's LLE. Further, as these characterizations are of a relative nature, the experience and knowledge of the various VA examiners with what is typical of manifestations of incomplete paralysis is of great probative value. In this case, that experience and knowledge has indicated the Veteran's condition is most accurately characterizes as moderate incomplete paralysis. As such, a rating in excess of 20 percent for each LLE radiculopathy is not warranted. REASONS FOR REMAND The June 2019 Board decision remanded the issue regarding an acquired psychiatric disorder for an examination to determine the nature and etiology of the Veteran's acquired psychiatric disorder. Medical evidence noted the Veteran to have depression and the Veteran argued his depression is related to his service-connected disabilities. The January 2020 VA examination report regarding PTSD noted the Veteran to have PTSD and found his PTSD related to an in-service fire and drowning incident in 1982 while aboard the U.S.S. Skate. The January 2020 VA examination report also noted depression secondary to PTSD. Overall, the record is unclear as to whether the alleged incident aboard the U.S.S. Skate actually occurred. The Board notes August 2020 correspondence asked the Veteran to submit a VA Form 21-0781 concerning in-service traumatic incidents. However, that form was not attached to the correspondence as indicated. Overall, additional development is needed to determine if the alleged in-service fire and drowning incident occurred. Additionally, the June 2019 Board decision's remand instructions were not followed. The remand instructions included secondary service-connection inquiries that were not addressed in the January 2020 VA examination report. Therefore, remand is required to comply with the Board's prior remand instructions. The matter is REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records relevant to treatment the Veteran received for his mental health condition that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Resend the Veteran VA Form 21-0781 and attempt to verify the Veteran's stressors regarding an in-service fire and drowning incident while aboard the U.S.S. Skate around 1982 through an appropriate records repository. 3. After the development in #1 and #2 above is completed, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran's acquired psychiatric disorder. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the reviewing clinician, the reviewing clinician should identify all mental health conditions present. Then, for each identified condition, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran's acquired psychiatric disability was incurred in, or is otherwise related, to his time on active service, to include an in-service fire and drowning incident? Is it at least as likely as not that the Veteran's acquired psychiatric disability was caused by his service-connected conditions? Is it at least as likely as not that the Veteran's acquired psychiatric disability was aggravated by his service-connected conditions? In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must 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 that particular question(s). 4. After the above development has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.