Citation Nr: 21041277 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-50 064 DATE: July 8, 2021 ORDER Entitlement to an evaluation of 20 percent, but no higher, prior to December 10, 2019 for service-connected radiculopathy of the right lower extremity is granted. Entitlement to an evaluation in excess of 40 percent from December 10, 2019 for service-connected radiculopathy of the right lower extremity is denied. FINDINGS OF FACT 1. Prior to December 10, 2019, the service-connected right radiculopathy of the lower extremity is manifest by moderate incomplete paralysis. 2. From December 10, 2019, the service-connected right radiculopathy of the lower extremity is manifest by moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 20 percent, but no higher, prior to December 10, 2019 for service-connected radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.20, 4.27, 4.120, 4.123, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to an evaluation in excess of 40 percent from December 10, 2019 for service-connected radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.20, 4.27, 4.120, 4.123, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1989 to January 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). This VLJ has since become unavailable to participate in the appeal. In May 2021, the Board sent a letter to the Veteran providing them with an opportunity to present testimony at a new hearing before a different VLJ. As explained in that letter, as the Veteran did not respond within 30 days from the date of the letter, the Board may assume that they do not want another hearing. This issue was previously before the Board in January 2020 and in November 2020, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. While on remand, in a February 2021 rating decision, the RO granted an evaluation of 40 percent for the right lower extremity radiculopathy effective December 10, 2019. Initially, the Board notes that in a November 2020 rating decision, the RO effectuated the November 2020 Board decision's grant of an entitlement to an evaluation of 40 percent from August 28, 2016 for the service-connected degenerative arthritis of the lumbar spine. This rating decision also indicated that entitlement to Individual Unemployability was deferred for additional development. Subsequently, the RO sent a November 2020 letter to the Veteran indicating that they may be entitled to a 100 percent rating if they are unable to secure and follow a substantially gainful occupation because of their service-connected disabilities, and requested that they complete the attached forms to verify the Veteran's employment information. The Veteran did not reply to this letter or submit the attached forms. In a March 2021 rating decision, entitlement to a TDIU prior to February 12, 2020, was denied, and the RO included the TDIU denial in the Supplemental Statement of the Case for the present right lower extremity radiculopathy claim. A claim for a TDIU, whether expressly or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, however, a TDIU was not expressly or reasonably raised by the record. The Veteran and their representative did not apply for a TDIU, nor did they reply to the November 2020 letter requesting that they submit a VA-Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Further, the issue of entitlement to a TDIU was not raised by the records. Additional VA treatment records were added to the record after the last statement of the case in March 2021, which refer to the Veteran's neuropathy in passing. A remand, pursuant to 38 C.F.R. § 20.1305(c) is not warranted, as the evidence does not have a bearing on the appellate issue. Entitlement to increased evaluations for the service-connected radiculopathy of the right lower extremity At the November 2019 Board hearing, the Veteran asserted that their feet feel like they are burning as if they were standing in a frying pan, and that they should receive a higher rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). The Veteran's right lower extremity radiculopathy is evaluated at 10 percent disabling prior to December 10, 2019, and 40 percent thereafter under DC 8520 for incomplete or complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. Disability evaluations of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis, which is mild, moderate, or moderately severe in degree, respectively. A 60 percent evaluation is warranted for severe incomplete paralysis with marked muscle atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The Veteran underwent VA examinations in February 2015, September 2017, February 2020, and February 2021. The Veteran also submitted VA Disability Benefits Questionnaires (DBQs) completed by private examiners in August 2016 and April 2020. Various VA and private treatment records (PTRs) also provide some insight into the severity of the Veteran's service-connected right lower extremity radiculopathy. The February 2015 VA examination found that for the right lower extremity, muscle strength was normal, reflexes were hypoactive, sensation to light touch was normal, and straight leg raising test results were negative. The Veteran reported mild paresthesias and/or dysesthesias, but no constant or intermittent pain, or numbness. The examiner opined that the right lower extremity radiculopathy affecting the sciatic nerve was of mild severity. January 2016 VA treatment records note that the Veteran complained of burning in the soles of the feet, with the left feeling worse than the right, and was advised to take nerve pain medication. March 2016 PTRs note that for the right lower extremity, muscle strength was reduced, deep tendon reflexes were normal, and straight leg raising test results revealed hamstring tightness. At a July 2016 Decision Review Officer hearing, the Veteran asserted that the last VA examination was performed after receiving a shot in the back to reduce pain, and that as a result the examination showed better results than the normal state of the disability. The examiner stated that they wanted to have a DBQ completed by their treating physician prior to another shot being administered. The Veteran submitted a DBQ completed by a private physician in August 2016. The Veteran reported severe pain radiating down to both legs, burning in the feet, inability to sleep due to the pain, leg weakness, frequent tripping, and painful stairclimbing. The examiner found that for the right lower extremity, muscle strength was reduced, reflexes were hypoactive, sensation to light touch was normal, and that straight leg raising test was positive. The Veteran reported severe constant and intermittent pain, no dull pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner opined that the right lower extremity radiculopathy affecting the sciatic nerve was of moderate severity. The September 2017 VA thoracolumbar spine examination found that for the right lower extremity, muscle strength was normal, reflexes were normal except for the right ankle which was hypoactive, sensation to light touch was normal, and that straight leg raising test results were negative. The Veteran reported no constant or intermittent pain, paresthesias and/or dysesthesias, or numbness. The examiner opined that there was no right lower extremity radiculopathy affecting the sciatic nerve. On a separate September 2017 VA examination for peripheral nerves, for the right lower extremity, the Veteran reported constant mild pain, mild paresthesias and/or dysesthesias, and mild numbness, but no intermittent pain. The examiner found muscle strength to be normal, normal reflexes except for the right ankle which was hypoactive, and normal sensation to light testing. The examiner opined that the sciatic nerve of the right lower extremity was normal. July and October 2018 PTRs indicate that the Veteran complained of constant burning pain in both feet. In October 2019, the Veteran submitted an affidavit reporting weakness, tingling, and numbness in the right lower extremity. The Veteran asserted that it affects ambulating because they sometimes lose feeling in the right leg, feel that they might fall, and have to stomp their foot to regain feeling. The Veteran also submitted affidavits from their spouse and grown child proving the same information, in addition to statements that they have to massage the Veteran's legs. At the November 2019 Board hearing, the Veteran asserted that they have "neuropathy" in the feet, and that while it first started in just the left foot, it is now in both lower legs. The Veteran explained that they feel burning all the time like they are standing in a frying pan, and that they take nerve pain medication which helps at night. The February 2020 VA thoracolumbar spine examination found that for the right lower extremity, muscle strength was normal, reflexes were hypoactive, sensation to light touch was normal except for decreased sensation in the toes, and that the straight leg raising test was negative. The Veteran reported mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness. The examiner opined that the right lower extremity radiculopathy affecting the sciatic nerve was of mild severity. On a separate February 2020 VA examination for peripheral nerves, for the right lower extremity, the Veteran reported mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The examiner found muscle strength to be normal, reflexes were hypoactive, and that sensation to light touch was normal except for decreased sensation in the toes. The examiner opined that the incomplete paralysis of the sciatic nerve was of mild severity. April 2020 PTRs note that for the right lower extremity, heel to walking testing was negative, slump testing was positive, and straight leg raising was positive. The Veteran submitted a DBQ completed by a private physician in April 2020. The Veteran reported burning pain in the feet. For the right lower extremity, muscle strength was found to be reduced in the hip and knee, but normal in the ankle, foot, and toe. Deep tendon reflexes and sensation to light touch were normal. Straight leg raising test was positive. The Veteran reported mild constant, intermittent, and dull pain, mild paresthesias and/or dysesthesias, and mild numbness. The examiner opined that the right lower extremity radiculopathy affecting the sciatic nerve was of mild severity. The February 2021 VA thoracolumbar spine examination found that for the right lower extremity, muscle strength was normal, reflexes were normal in the knee but hypoactive in the ankle, sensation to light touch was normal, and straight leg raising test was negative. The Veteran reported no constant pain, severe intermittent pain, no paresthesias and/or dysesthesias, and no numbness. The examiner did not provide an opinion on the severity of the disability. However, on a separate February 2021 VA peripheral nerves examination with the same findings as the thoracolumbar spine examination, the examiner opined that the incomplete paralysis of the sciatic nerve was moderately severe. For the period prior to December 10, 2019 The Board finds that the evidence of record is in conflict. The February 2015 VA examiner opined that the right lower extremity was of mild severity; the August 2016 private examiner opined that the right lower extremity was of moderate severity; and the September 2017 VA examiner found the right lower extremity to be normal. Although obtained through objective medical testing performed by medical professionals, results from muscle strength, reflex, sensory, and straight leg raise testing have fluctuated throughout this period. The various VA and PTRs noted above also contain differing reports on the severity of the disability. Subjective reporting from the Veteran regarding pain, numbness, or paresthesias and/or dysesthesias has ranged from absent, mild, moderate, to severe. The Veteran, however, has consistently reported constant and painful burning sensation in both feet. The Veteran has also asserted that they received injections to help reduce the symptoms and reported forgoing an injection prior to undergoing the August 2016 private examination to demonstrate the true severity of the disability. This was the only examination conducted without the ameliorating effects of medication. Such ameliorative effects cannot be directly taken into account when considering which disability rating to assign because none of the applicable diagnostic codes directly contemplate the effects of medication. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Given the inconsistent results from objective medical testing, this suggests fluctuations in the severity of the disability that are difficult to delineate into further distinguishable time periods. Resolving all reasonable doubt in the Veteran's favor, the Board finds that prior to December 10, 2019, the service-connected radiculopathy of the right lower extremity is manifest by moderate incomplete paralysis. A higher evaluation is not warranted because at no point during this period has there been moderately severe or severe incomplete paralysis, or complete paralysis of the right lower extremity. Additionally, the Veteran is presently rated at 40 percent for moderately severe radiculopathy of the left lower extremity throughout the entire appeal period. Objective medical testing from both VA and private examiners has consistently shown the left to be worse than the right. Further, VA and PTRs from October 2014, January 2016, March 2016, and August 2017 show the Veteran's subjective complaints of pain in the left lower extremity but make no mention of the right lower extremity. Accordingly, an evaluation of 20 percent for moderate severity of the radiculopathy of the right lower extremity prior to December 10, 2019 is granted. For the period from December 10, 2019 As above, the Board finds that the evidence of record is in conflict. The February 2020 VA examiner and the April 2020 private examiner opined the right lower extremity was of mild severity, and the February 2021 VA examiner opined that the right lower extremity was moderately severe. And as above, results from objective medical testing performed by medical professionals, and the Veteran's subjective reports have both fluctuated throughout this short period since December 2019. However, the radiculopathy of the right lower extremity is already evaluated at 40 percent for moderately severe incomplete paralysis. At no point during this period has the radiculopathy of the right lower extremity been shown to be manifest by severe incomplete paralysis, or complete paralysis, so a higher evaluation is not warranted. Accordingly, an evaluation in excess of 40 percent for radiculopathy of the right lower extremity from December 10, 2019 is denied. For the entire appeal period, the Board is sympathetic to the Veteran's lay statements that the 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 them through their senses. Layno v. Brown, 6 Vet. App. 465 (1994). While the Board acknowledges the lay statements and Board hearing testimony, the Veteran has not shown that they have the necessary knowledge and experience 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 disabilities have been provided by the medical personnel who have examined them 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 disabilities are evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. Neither the Veteran nor their representative has raised any other issues, nor have any other issues been reasonably raised by the record. SARAH B. RICHMOND Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.