Citation Nr: 21040188 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-42 621 DATE: July 2, 2021 ORDER Entitlement to service connection for migraine headaches is granted. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy of the femoral nerve is denied. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve prior to March 9, 2021, and in excess of 40 percent on and after March 9, 2021, is denied. Entitlement to an initial compensable rating for radiculopathy of the left lower extremity of the obturator nerve is denied. Entitlement to an initial compensable rating for left lower extremity radiculopathy of the external cutaneous nerve is denied. Entitlement to an initial compensable disability rating for radiculopathy of the left lower extremity of the ilio-inguinal nerve is denied. FINDINGS OF FACT 1. Resolving doubt in the Veteran's favor, the Veteran's headaches are related to active service. 2. The Veteran's service-connected left lower extremity femoral nerve radiculopathy is manifested by moderate incomplete paralysis. 3. Prior to March 9, 2021, the left lower extremity sciatic nerve radiculopathy is manifested by moderate, but not moderately severe, incomplete paralysis. 4. From March 9, 2021, the left lower extremity sciatic nerve radiculopathy is manifested by moderately severe incomplete paralysis, but not severe incomplete paralysis. 5. The left lower extremity obturator nerve radiculopathy is manifested by mild or moderate incomplete paralysis, but not severe or complete paralysis. 6. The left lower extremity external cutaneous nerve radiculopathy is manifested by mild or moderate incomplete paralysis, but not severe or complete paralysis. 7. The left lower extremity ilio-inguinal nerve radiculopathy is manifested by mild or moderate incomplete paralysis, but not severe or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial rating in excess of 20 percent for left lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8526. 3. The criteria for an initial rating in excess of 20 percent for left lower extremity sciatic nerve radiculopathy prior to March 9, 2021, and in excess of 40 percent on and after March 9, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for an initial compensable rating for left lower extremity obturator nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8528. 5. The criteria for an initial compensable rating for left lower extremity external cutaneous nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8529. 6. The criteria for an initial compensable disability rating for left lower extremity ilio-inguinal nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8530. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from August 1983 to February 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the issues of service connection for sleep apnea, service connection for irritable bowel syndrome (IBS), service connection for migraine headaches, entitlement to an initial rating in excess of 10 percent for left lower extremity sciatic nerve radiculopathy, and entitlement to an initial rating in excess of 10 percent for left lower extremity femoral nerve radiculopathy for additional development. On remand, the RO granted service connection for sleep apnea and IBS. Because those benefits have been granted in full, the issues are no longer on appeal. A May 2020 rating decision assigned higher initial ratings of 20 percent for left lower extremity sciatic nerve radiculopathy and 20 percent for left lower extremity femoral nerve radiculopathy. A March 2021 rating decision assigned a higher rating of 40 percent for left lower extremity sciatic nerve radiculopathy effective March 9, 2021, and continued the rating for left lower extremity femoral nerve radiculopathy. The issues on appeal have therefore been recharacterized as shown on the title page of this decision. The March 2021 rating decision also granted service connection for left lower extremity obturator nerve radiculopathy effective March 9, 2021, granted service connection for left lower extremity ilio-inguinal nerve radiculopathy effective March 9, 2021, and granted service connection for left lower extremity external cutaneous nerve radiculopathy effective March 9, 2021. The issues of entitlement to initial compensable ratings for left lower extremity ilio-inguinal nerve radiculopathy, left lower extremity left lower extremity external cutaneous nerve radiculopathy, and left lower extremity femoral nerve radiculopathy have been added as issues on appeal. The Board has taken jurisdiction over such issues given that the issues of entitlement to higher initial ratings for left lower extremity sciatic nerve radiculopathy and left lower extremity femoral nerve radiculopathy are already on appeal and it appears that his radiculopathy now involves the ilio-inguinal nerve, external cutaneous nerve, and femoral nerve. The Board notes that additional evidence was added to the claims folder after the Supplemental Statement of the Case and after certification of the appeal to the Board. 38 C.F.R. §§ 19.31, 19.37(b). However, the RO reviewed that evidence and readjudicated the issues in a March 2021 rating decision and the Board finds that it may review and consider such evidence. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans' Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. There is no indication in the record that the Veteran is unemployed, and he has not alleged unemployability. Accordingly, the Board finds that Rice is not applicable and a need for consideration of TDIU is not inferred as part of the claim for increased initial ratings. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided as evidenced by the Veteran's signed response to the notice dated in April 2015. The RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. Updated VA treatment records were associated with the claims folder in accordance with the Board's November 2018 remand. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. The VA examinations comply with the Board's November 2018 remand. As such, VA has satisfied its duty to assist. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service connection for headaches Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that his headaches are related to service or, in the alternative, related to his service-connected disabilities. A February 2005 progress note included in the service treatment records show headaches associated with Zoloft, a medication for the Veteran's PTSD. A July 2005 report of medical history shows that the Veteran reported frequent or severe headaches. An October 2005 VA examination report for mental disorders, completed during the Veteran's period of active duty, shows that the Veteran complained of headaches. A March 2013 VA treatment record reflects the Veteran's report that his headaches onset about 12 years ago. The Veteran was provided a VA examination for headaches in October 2014. The report shows that the diagnosis onset in 2001 during active service. The Veteran reported that he first started having migraine headaches on active duty prior to PTSD, and had symptoms of severe headaches. He continued to have headaches and was followed by neurology. In December 2014, the Veteran's private physician, Dr. TS, reviewed a medical record presented by the Veteran and opined that it was more likely than not that the current conditions, including migraine headaches, were contributed to if not directly caused by activities done while on active duty in the military. Dr. TS did not provide any reasoning for the expressed opinion and it is therefore assigned little probative value. A March 2016 VA treatment record shows that the Veteran reported headaches beginning in 2002 or 2003. In August 2020, the Veteran was provided a VA examination for headaches. The report shows a diagnosis of migraine headaches. The Veteran reported headaches since active duty service. The examiner noted a clinical diagnosis in 2012. There was no opinion provided as to direct service connection. The Board finds that service connection is warranted for migraine headaches. VA examiners have not provided opinions as to direct service connection. However, records dated during active service show reports of headaches. In addition, post-service, the Veteran has alleged that he has experienced chronic headaches and, on several occasions, reported the onset occurring during active service. Given the reports of headaches during active service, the Board finds the Veteran competent and credible to report chronic headaches since service. See Jandreau v. Nicholson, 492 F.3d. 1372, 1376 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("A lay witness may testify as to his or her observations of the features or symptoms that a claimant exhibited."). While the Veteran has provided other reports that seemingly conflict with his statements that his headaches onset during active service, the Board finds the evidence in relative equipoise and will resolve doubt in the Veteran's favor as to whether his current migraine headaches are related to service. Service connection for migraine headaches is granted. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. In evaluating the severity of a particular 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 already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence VA treatment records show complaint of pain, numbness and tingling. A January 7, 2015, VA treatment record noted neurological complaints including loss of sensation, tingling, numbness, tremor, weakness, paralysis. On examination, the left leg had a positive straight leg test, strength was 3/5, and there was 2/2 pain with movement. A January 27, 2015, VA treatment record shows pain at 7/10, that was pulsating throbbing pain. There was tingling/electric shock pain. In May 2015, the Veteran was provided a VA spine examination. The report shows a diagnosis of radiculopathy. The Veteran reported that he now experiences radiculopathy and had left leg parethesias. Muscle strength testing was 4/5 in all areas tested. Reflex examination findings were normal for all areas tested. Sensory examination showed decreased sensation to light touch in all areas tested. Straight leg testing was positive. As to signs and symptoms, the Veteran had mild constant pain, moderate parethesias/dysesthesias, and moderate numbness. The examiner noted involvement of the femoral nerve and sciatic nerve. In July 2015, the Veteran's private physician, Dr. T.S. stated that the Veteran presented with symptoms of pain in the left leg along with numbness and other paresthesia, hypesthesia, and weakness. He stated that he would rate the Veteran's symptoms as moderate to severe. In July 2016, the Veteran was provided a VA spine examination. The Veteran reported that his pain radiated down his left leg. His leg and foot become numb. Muscle strength testing was normal in all areas tested. Reflex examination showed hypoactive reflex (1+) in the left knee and absent reflex in the left ankle. Sensory examination results were normal except for findings of decreased sensation in the left lower leg/ankle and left foot/toes. There was a negative straight leg raising test. As to signs and symptoms, the Veteran had severe constant pain, severe paresthesias and/or dysesthesias, and severe numbness. The examiner noted involvement of the sciatic nerve, finding that there was moderate radiculopathy. A November 2016 VA treatment record shows sciatica radiating to the left leg to a moderate degree. An August 2016 VA treatment record shows numbness in left leg down to bottom of his foot. An August 2017 VA treatment record noted that the left foot occasionally drags. VA treatment records show use of lumbar epidural steroid injections. In June 2019, a VA examination for peripheral nerves was provided. The report shows diagnoses of left lower extremity radiculopathy of the femoral nerve and sciatic nerve. The Veteran reported weakness, tingling, and pain to the left leg. There was mild constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Muscle strength testing was normal in all areas tested except for 4/5 in the knee extension, ankle plantar flexion, and ankle dorsiflexion. Reflex examination was normal in all areas tested. Sensory examination was normal in all areas tested. The examiner noted involvement of the sciatic nerve and assessed incomplete paralysis of the moderately-severe degree. There was also involvement of the femoral nerve and the examiner assessed incomplete paralysis of the moderate degree. All other nerves were normal. The Veteran regularly used a cane for an unsteady gait. Concerning functional impact on work, the Veteran had pain and limitation of sensation in the leg and feet may interfere with standing and walking for a prolonged period of time, inhibiting walking up and down stairs and physical labor. A December 2019 VA treatment record shows that the Veteran had some numbness and tingling to the left leg. In March 2021, the Veteran was provided a VA examination for peripheral nerves. The Veteran reported burning, tingling, numbness, pain, and swelling daily. He used acupuncture, epidural, Gabapentin, and Prednisone. As to signs and symptoms, the Veteran had moderate constant pain, severe intermittent pain, severe paresthesias/dysesthesias, and severe numbness. Muscle strength was normal in all areas tested except for 4/5 in knee extension, ankle plantar flexion, and ankle dorsiflexion. Reflexes were normal in all areas tested. Sensory examination findings were normal except for diminished sensation in the lower leg/ankle and foot/toes. The Veteran had an unstable gait for constant weakness, tingling, and numbness in the left lower extremity. The examiner noted involvement of the sciatic nerve and that the Veteran had moderately-severe incomplete paralysis. The external popliteal (common peroneal nerve) was involved and assessed as moderate incomplete paralysis. The musculocutaneous nerve was involved and assessed as moderate incomplete paralysis. The anterior tibial nerve was involved and assessed as moderate incomplete paralysis. The internal popliteal nerve was involved and assessed as moderate incomplete paralysis. The posterior tibial nerve was involved and assessed as moderate incomplete paralysis. The femoral nerve was involved and assessed as moderate incomplete paralysis. The internal saphenous nerve was involved and assessed as moderate incomplete paralysis. The obturator nerve was involved and assessed as moderate incomplete paralysis. The external cutaneous nerve was assessed as moderate incomplete paralysis. The ilio-inguinal nerve was involved and assessed as moderate incomplete paralysis. The Veteran constantly used a cane for left leg sciatica. Concerning functional impact on work, due to increased pain, weakness, and numbness performing a physical prolonged workday would interfere with the Veteran's work duties. 1. Entitlement to an initial rating in excess of 20 percent for left lower extremity femoral nerve radiculopathy Under Diagnostic Code 8526 for the femoral nerve, a 20 percent rating is warranted for moderate incomplete paralysis. A 30 percent rating is warranted for severe incomplete paralysis. A maximum 40 percent rating is warranted for complete paralysis of the quadriceps extensor muscles. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The rating schedule does not define the terms "mild," "moderate," or "severe." Therefore, the Board must evaluate the evidence of record and reach a decision that is equitable and just. 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, 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. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. The Board recognizes the Veteran's private physician's opinion that the Veteran's symptoms of radiculopathy have been moderate to severe. However, the physician did not identify any examination findings for that opinion, diminishing the value of that opinion. The Board also acknowledges the Veteran's statements, reported symptoms, and the functional impact on employment. However, the Board assigns greater probative value to the VA examination findings and VA treatment records that show detailed findings to include muscle strength testing, sensory testing, and reflex testing and finds that the Veteran's incomplete paralysis is of a moderate degree. Though the July 2016 VA examination report shows that the Veteran had severe constant pain, severe paresthesias and/or dysesthesias, and severe numbness, the examination findings also show normal muscle group testing and the examiner assessed the Veteran's radiculopathy as moderate. The March 2021 VA examination report also shows moderate constant pain, severe intermittent pain, severe paresthesias/dysesthesias, and severe numbness. Muscle strength was normal in all areas tested except for 4/5 in knee extension, ankle plantar flexion, and ankle dorsiflexion. Reflexes were normal in all areas tested. The examiner continued to assess the Veteran's incomplete paralysis as moderate. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted and a preponderance of the evidence is against the claim. The claim is denied. 2. Entitlement to an initial rating in excess of 20 percent for left lower extremity sciatic nerve radiculopathy prior to March 9, 2021, and in excess of 40 percent on and after March 9, 2021 Under Diagnostic Code 8520, a 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent rating is warranted for complete paralysis of the sciatic nerve of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520. First, the Board recognizes that a March 2021 VA examination report identified that the posterior tibial, external popliteal, musculocutaneous, anterior tibial, internal popliteal and sciatic nerves were shown to be affected, these ratings all address the Veteran's foot. The Veteran's sciatic nerve that addresses foot symptomatology has already been assigned ratings. 38 C.F.R. § 4.14. Thus, separate ratings for these nerves is not warranted. Prior to March 9, 2021, the Board finds that a rating in excess of 20 percent is not warranted. The Board recognizes the Veteran's private physician's opinion that the Veteran's symptoms were moderate to severe. However, the physician did not identify any findings for that opinion, diminishing the value of the opinion. The Board also acknowledges the Veteran's statements, reported symptoms, and functional impact on his employment. However, the Board assigns greater probative value to the VA examination reports that include detailed findings of muscle strength testing, sensory testing, and reflex testing. Though the July 2016 VA examination report shows that the Veteran had severe constant pain, severe paresthesias and/or dysesthesias, and severe numbness, the examination findings also show normal muscle strength testing and the examiner assessed the radiculopathy as moderate. In addition, the VA examination findings overwhelmingly show a moderate level of symptoms and the VA examiner found the Veteran's sciatic nerve radiculopathy to be moderate prior to March 9, 2021. Accordingly, the Veteran's left lower extremity sciatic nerve radiculopathy is more akin to moderate incomplete paralysis and a rating in excess of 20 percent is not warranted prior to March 9, 2021. A preponderance of the evidence is against the claim for a higher rating prior to March 9, 2021 and the claim is denied. From March 9, 2021, a rating in excess of 40 percent is not warranted for left lower extremity sciatic nerve radiculopathy. The March 2021 VA examination report findings show moderate constant pain, severe intermittent pain, severe paresthesias/dysesthesias, and severe numbness. However, muscle strength was normal in all areas tested except for 4/5 in knee extension, ankle plantar flexion, and ankle dorsiflexion. Reflexes were normal in all areas tested and the examiner determined that the Veteran had moderately-severe incomplete paralysis, but not severe. Thus, the Board finds that the Veteran's symptoms are more akin to moderately-severe incomplete paralysis. Accordingly, a rating in excess of 40 percent for left lower extremity radiculopathy is not warranted from March 9, 2021. A preponderance of the evidence is against the claim and the claim is denied. 3. Entitlement to an initial compensable rating for left lower extremity obturator nerve radiculopathy 4. Entitlement to an initial compensable rating for left lower extremity external cutaneous nerve radiculopathy 5. Entitlement to an initial compensable disability rating for left lower extremity ilio-inguinal nerve radiculopathy Under Diagnostic Code 8528, a 0 percent rating is warranted for mild or moderate paralysis of the obturator nerve and a 10 percent rating is warranted for severe to complete paralysis. Under Diagnostic Code 8529, a 0 percent rating is warranted for mild or moderate paralysis of the external cutaneous nerve, and a 10 percent rating is warranted for severe to complete paralysis of the external cutaneous nerve. Under Diagnostic Code 8530, a 0 percent rating is warranted for mild or moderate paralysis of the ilio-inguinal nerve and a 10 percent rating is warranted for severe or complete paralysis of the ilio-inguinal nerve. The medical evidence of record first shows the involvement of the aforementioned nerves on examination in March 2021. At that examination, the Veteran had moderate constant pain, severe intermittent pain, severe paresthesias/dysesthesias, and severe numbness. However, muscle strength testing was 4/5 at its worst, and reflexes were normal. In addition, the examiner assessed the incomplete paralysis of the aforementioned nerves as moderate. Thus, the Board finds that the Veteran's incomplete paralysis is more akin to moderate incomplete paralysis and not a severe or complete paralysis. Accordingly, initial compensable ratings for left lower extremity obturator nerve radiculopathy, left lower extremity external cutaneous nerve radiculopathy, and left lower extremity ilio-inguinal nerve radiculopathy are not warranted. A preponderance of the evidence is against the claims and the claims are denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.