Citation Nr: 21032628 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-54 261 DATE: May 27, 2021 ORDER Entitlement to a rating in excess of 30 percent for a cervicogenic headache disability is denied. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is denied. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy for the period prior to November 13, 2017, and in excess of 20 percent thereafter is denied. REMANDED Entitlement to a rating in excess of 10 percent for cervical spine osteoarthritis for the period prior to December 5, 2019, and in excess of 30 percent thereafter is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran's cervicogenic headache disability was characterized by daily headache pain with light sensitivity but not by very frequent prolonged and prostrating attacks. 2. During the period on appeal, the Veteran's left lower extremity radiculopathy was characterized by mild intermittent pain, a feeling like a knot in the calf and normal muscle strength. 3. During the period prior to November 13, 2017, the Veteran's right lower extremity radiculopathy was characterized by radiating pain localized under the kneecap and normal muscle tone. 4. During the period after to November 13, 2017, the Veteran's right lower extremity radiculopathy was characterized by moderate constant pain and muscle strength reduced to 4 out of 5. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for a cervicogenic headache disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8100 (2020). 2. The criteria for a rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520 (2020). 3. The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy prior to November 13, 2017 and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1969 to May 1971 and from December 1990 to May 1991. This matter came before the Board of Veterans Appeals (Board) on appeal from May 2013 and June 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during an August 2019 hearing. The transcript of the hearing is of record. A September 2019 Board decision remanded the issues on appeal for further development. An August 2020 rating decision increased the rating for cervical spine osteoarthritis from 10 to 30 percent. Because higher ratings for the disability are assignable during the relevant period and the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The August 2020 rating decision also granted TDIU effective October 2, 2009, stating that this was the date entitlement arose and that the decision constituted a full grant of the benefit sought on appeal. The February 2011 VA 21-8940 shows that the grant covered the entire time of unemployment. It therefore constitutes a complete grant of the benefit sought on appeal and the issue is not before the Board. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has been established and an increased disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating in excess of 30 percent for cervicogenic headaches The Veteran contends that he is entitled to an increased rating for his migraine headache disability, which is currently rated as 30 percent disabling under DC 8100. The Board concludes that an increased rating is not warranted. For the entire period on appeal, the Veteran's cervicogenic headache disability has been rated under Diagnostic Code (DC) 8100. Under the DC, a 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over last several months and a 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. This is the highest rating available under the DC. 38 C.F.R. § 4.124a, DC 8100. VA treatment records from the period contain a diagnosis of migraine headaches and show a prescription for Tramadol but are silent for headache complaints. March 2016 records show a prescription for Tramadol taken as needed, but the review of symptoms noted that there were no headaches. The Veteran denied headaches in April 2017 and April 2018, October 2018 records noted no headaches on a review of symptoms, and the Veteran again denied headaches in April 2019. A May 2016 VA examination found headaches lasting more than 2 days associated with his neck pain. The examiner did not find any non-headache symptoms. The examiner found no prostrating attacks of migraine pain but found prostrating attacks of non-migraine pain more often than once per month. The examiner found that the Veteran did not have very frequent prostrating and prolonged attacks of non-migraine pain. A November 2017 VA examination found headaches lasting 1 to 2 days involving pain and sensory changes, worse when he had neck pain and with physical activity. The examiner found that the examiner did not have characteristic prostrating attacks of either migraine or non-migraine headache pain and assessed the severity of the Veteran's disability as moderate. A December 2019 VA examination found headaches lasting less than a day. The examiner also found non-headache symptoms of light sensitivity but found that the Veteran did not have characteristic prostrating attacks either migraine or non-migraine headache pain. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the August 2019 Board hearing, the Veteran testified that he got headaches all the time but did not really pay attention to how long they lasted. He stated that they were not so overwhelming that he had to lie down and that he just kept going and did what he needed to do, often massaging the back of his neck. The Board notes that the Veteran is competent to report lay-observable symptoms such as headache pain and accords his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Again, the Veteran's headache disability is currently rated as 30 percent disabling under DC 8100. To warrant a 50 percent rating under the DC, the evidence would need to show very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board finds that the competent evidence of record is against finding that the Veteran had very frequent completely prostrating and prolonged attacks of headache pain at any point during the period on appeal. The November 2017 and December 2019 VA examinations both found that the Veteran did not have any characteristic prostrating attacks. While the May 2016 examiner found prostrating attacks, he found that the Veteran did not have very frequent prostrating and prolonged attacks. These findings are consistent with the Veteran's August 2019 hearing testimony, when he stated that his headaches were frequent but not so overwhelming that he had to go and lie down. Thus, there is simply no evidence that supports the conclusion that the Veteran had prostrating attacks of the frequency required for a 50 percent rating. A rating in excess of 30 percent is therefore not warranted. Because headaches are specifically listed in the rating schedule, the Veteran's disability may not be rated by analogy under a different DC. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Therefore, no other DCs are potentially applicable which might afford a higher rating on an alternative basis. The preponderance of the evidence is against a rating in excess of 30 percent for the period on appeal. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. Therefore, a rating in excess of 30 percent for a cervicogenic headache disability is denied. 2. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy 3. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy for the period prior to November 13, 2017, and in excess of 20 percent thereafter The Veteran contends that he is entitled to an increased rating for his bilateral lower extremity sciatic radiculopathy, which is rated at 10 percent for the left lower extremity. The right lower extremity has a staged rating of 10 percent prior to November 13, 2017, and 20 percent thereafter. For following reasons, the Board finds that increased ratings are not warranted. For the entire period on appeal, the Veteran's left and right lower extremity sciatic radiculopathy has been rated under DC 8520, which rates paralysis of the sciatic nerve. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve, a 20 percent rating is warranted for moderate incomplete paralysis, and a 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis of the nerve, with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. This is the highest rating available under the DC. The peripheral nerve rating schedule states that when the nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. 38 C.F.R. § 4.124a. VA treatment records show complaints of pain radiating down the legs and treatment for nerve pain but do not contain an assessment of the severity of the Veteran's lower extremity radiculopathy. A December 2010 lumbar spine MRI report noted low back pain going down the leg and found disc disease and bulging. January 2013records noted low back pain with leg pain. The provider found palpable pulses and that the protective sensation was intact. A February 2014 lumbar MRI found disc herniation, compression deformity and encroachment on the descending S1 nerve root. April 2017 records show a prescription for nerve pain, but a review of neurological symptoms noted that there was no numbness or tingling in the extremities. A December 2008 VA examination noted the Veteran's reports of pain radiating into the lower extremities, mainly the right. On examination, the examiner found a sensory deficiency of the bilateral lateral thighs and right lateral leg and back of thigh. The examiner opined that the sciatic nerve was the most likely peripheral nerve involvement and diagnosed degenerative joint disease with intervertebral disc syndrome with sciatic nerve involvement. The examiner did not provide an assessment regarding severity. A March 2010 VA examination noted the Veteran's reports of pain travelling into the legs, worse with physical activity. On, examination, the examiner found evidence of radiating pain on movement in both lower legs. The examiner found a sensory deficit in the bilateral thighs, legs and feet and found that the most likely peripheral nerve was the sciatic nerve. The examiner did not provide an assessment regarding severity. An April 2011 VA examination noted lower back pain that travelled into the legs, exacerbated by physical activity. He reported that he was not receiving treatment for the condition. On examination, the provider found normal muscle tone and no muscle atrophy in the lower extremities and found that peripheral nerve involvement was not evident. Sensory examination was intact in both lower extremities. Neurological examination of the spine found no signs of chronic/permanent nerve root involvement. An EKG was noted to be within normal limits. The examiner did not diagnose lower extremity radiculopathy, stating that there was no pathology to render a diagnosis. A November 2017 VA back examination diagnosed right lower extremity sciatic radiculopathy. The examiner found right lower extremity symptoms of moderate intermittent pain and paresthesias and mild numbness. The examiner did not find left lower extremity symptoms. Muscle strength was found to be normal and the examiner found that there was no muscle atrophy. The examiner found that right lower extremity sciatic radiculopathy was moderate and found that the left lower extremity was not affected. A December 2018 VA peripheral nerve examination diagnosed bilateral lower extremity radiculopathy but did not specify the nerve involvement. The examiner noted the Veteran's reports of pain radiating to the bilateral thighs, worse on the right. The Veteran denied throbbing, numbness, tingling and burning sensations. The examiner found symptoms of mild right lower extremity constant pain and mild left lower extremity intermittent pain and did not find paresthesias or numbness. Muscle strength was found to be normal and the examiner did not find muscle atrophy. Reflex and sensory examinations were also normal. A December 2019 VA examination found bilateral femoral and sciatic radiculopathy. The examiner noted symptoms of moderate constant pain in the right lower extremity and mild intermittent pain in the left lower extremity. The examiner found that radiculopathy in the right lower extremity was moderate, and that it was mild in the left lower extremity. The examiner found that there was no muscle atrophy. Muscle strength was 4 out of 5 in the right lower extremity and normal on the left lower extremity. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the August 2019 Board hearing, the Veteran reported that his disability worsened around 3 years earlier, stating that he used to just feel pain under the knee and now it was worse. He testified that his right leg was worse than the left and had pain all the time. He stated that the left leg did not have constant pain, but he sometimes felt pain like a knot in the left calf. The Board notes that the Veteran is competent to report lay-observable symptoms such as pain and accords his statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Left lower extremity radiculopathy The Board finds that the competent evidence of record is against an evaluation above 10 percent for left lower extremity sciatic radiculopathy for the period on appeal. Again, to warrant a 20 percent rating under DC 8520 the evidence would need to show moderate incomplete paralysis. The Board finds that the competent evidence of record does not support the conclusion that the Veteran's left lower extremity sciatic radiculopathy was moderate in severity during the period on appeal. Throughout the period on appeal, VA examinations either found no left lower extremity symptoms or found that those symptoms were mild in severity. The December 2008 examiner stated that pain was mainly in the right lower extremity, the March 2010 examiner did not provide an assessment of severity, the April 2011 examiner did not find any radiculopathy, and the November 2017 examiner did not find any left lower extremity involvement. Subsequent examinations all assessed the disability as mild. The Board notes that these assessments are consistent with the Veteran's testimony describing his left leg pain as intermittent rather than constant and comparable to feeling a knot in his calf. In addition, left lower extremity muscle strength and reflexes were consistently found to be normal and the is no indication that the Veteran had muscle atrophy. As noted above, the rating schedule provides that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Here, the record indicates that the Veteran's disability is appropriate classified as "mild" as the assessments of both symptoms and the radiculopathy itself have consistently been mild, and the evidence indicates that there is no muscular involvement. A rating in excess of 10 percent for left lower extremity sciatic radiculopathy is therefore not warranted. The Board notes that the December 2019 VA examination also diagnosed femoral radiculopathy in the left lower extremity, however a separate 10 percent rating for that disability was already assigned in the August 2020 rating decision. Under DC 8726, neuritis of the femoral nerve is rated on the scale provided for injury of the nerve with a 10 percent rating is assigned for mild incomplete paralysis. 38 C.F.R. §§ 4.123, 4.124a, DC 8526, 8726. For a 20 percent rating, the evidence would need to show that femoral radiculopathy was moderate in severity. As discussed above, the competent evidence regarding the Veteran's left lower extremity radiculopathy indicates that it is mild in severity, and a rating in excess of 10 percent is therefore not warranted for left lower extremity femoral radiculopathy. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a rating in excess of 10 percent for the period on appeal. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. Therefore, a rating in excess of 10 percent for left lower extremity sciatic radiculopathy is denied. Right lower extremity radiculopathy The Board finds that the competent evidence of record is against an evaluation for right lower extremity sciatic radiculopathy above 10 percent for the period prior to November 13, 2017, and in excess of 20 percent thereafter. For the period prior to November 13, 2017, the Veteran's right lower extremity sciatic radiculopathy is rated as 10 percent disabling. To warrant a 20 percent rating under DC 8520 the evidence would need to show moderate incomplete paralysis. The Board finds that the competent evidence of record does not support the conclusion that the Veteran's right lower extremity sciatic radiculopathy was moderate in severity during the period prior to November 13, 2017. The December 2008 and March 2010 examiners noted radiating pain and likely sciatic nerve involvement but did not provide an assessment of severity. The April 2011 examiner did not find any radiculopathy in the right lower extremity, specifically noting that an EKG was within normal limits and sensory and neurological examinations did not show any deficits. The competent lay evidence of record also indicates that the Veteran's right leg disability was less severe during the period prior to November 2017 than during the later period. The Veteran does not contend that his symptoms have been constant throughout the period on appeal. At the August 2019 hearing, the Veteran stated that he began to notice worsening symptoms three years prior and before that time he only had pain localized under the knee rather than the constant pain down the leg that he had at the time of the hearing. Thus, the evidence does not support the conclusion that the Veteran's overall disability picture was moderate in severity during the period prior to November 13, 2017 and indicates that it is appropriately assessed as "mild" during that period. Thus, a rating in excess of 10 percent for right lower extremity sciatic radiculopathy during the period prior to November 13, 2017 is not warranted. Again, for the period after November 13, 2017, the Veteran's right lower extremity sciatic radiculopathy is rated as 20 percent disabling. To warrant a 40 percent rating under DC 8520 the evidence would need to show moderately severe incomplete paralysis. The Board finds that the competent evidence of record is against finding that the Veteran's right lower extremity was moderately severe during the period after November 13, 2017. The November 2017, December 2018 and December 2019 examiners all found that right lower extremity radiculopathy was moderate in severity. The examiners all found symptoms of moderate constant pain in the right lower extremity of pain when walking and sitting, which the Board notes is consistent with the Veteran's August 2019 hearing testimony. The examiners found no muscle atrophy and the November 2017 and December 2018 examiners found that muscle strength was normal. The December 2019 examiner found muscle strength was reduced, but it was reduced only to 4 out of 5, which is not inconsistent with an assessment of moderate severity. Thus, there is simply no basis upon which the Board can conclude that the Veteran's right lower extremity radiculopathy was moderately severe during the period after November 13, 2017 and a rating in excess of 20 percent is not warranted. The Board notes that the December 2019 VA examination also diagnosed femoral radiculopathy in the right lower extremity, however a separate 20 percent rating for that disability was already assigned in the August 2020 rating decision. Under DC 8526, which rates paralysis of the femoral nerve, a 20 percent rating is assigned for moderate incomplete paralysis. 38 C.F.R. §§ 4.123, 4.124a, DC 8526. For a 30 percent rating under the DC, the evidence would need to show severe femoral radiculopathy. As discussed above, the competent evidence regarding the Veteran's right lower extremity radiculopathy indicates that it is moderate in severity, and a rating in excess of 20 percent is therefore not warranted for femoral radiculopathy. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a rating in excess of 10 percent for the period prior to November 13, 2017 and against a rating in excess of 20 percent thereafter. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. Therefore, a rating in excess of 10 percent for right lower extremity sciatic radiculopathy prior to November 13, 2017, and in excess of 20 percent thereafter, is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for cervical spine osteoarthritis for the period prior to December 5, 2019, and in excess of 30 percent thereafter The September 2019 Board remand requested a new cervical spine examination and specifically stating that if pain was noted on range of motion testing, the examiner should note the point pain began. A VA cervical spine examination was provided in December 2019. However, while the examiner found pain on range of motion testing, she did not note the point in range of motion that pain began as requested in the remand directives. This does not allow the Board to properly assess the functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. Remand is therefore required to provide an accurate picture of functional loss associated with the Veteran's cervical spine disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his cervical spine disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all cervical spine pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. 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). 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.