Citation Nr: 21041826 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-38 329 DATE: July 10, 2021 ORDER An initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. Prior to March 9, 2020, an initial rating in excess of 10 percent for left lower extremity radiculopathy is denied. From March 9, 2020, a disability rating of 40 percent, but no higher, for left lower extremity radiculopathy is granted, subject to the laws and regulations governing monetary benefits. REMANDED Prior to March 9, 2020, an initial rating in excess of 10 percent for a lumbosacral strain is remanded. From March 9, 2020, a disability rating in excess of 40 percent for a lumbosacral strain is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right lower extremity radiculopathy more nearly approximated mild incomplete paralysis of the sciatic nerve. It did not approximate moderate incomplete paralysis. 2. Prior to March 9, 2020, the Veteran's left lower extremity radiculopathy more nearly approximated mild incomplete paralysis of the sciatic nerve. It did not approximate moderate incomplete paralysis. 3. From March 9, 2020, the Veteran's left lower extremity radiculopathy more nearly approximated moderately severe incomplete paralysis of the sciatic nerve. It did not approximate severe incomplete paralysis with marked muscular atrophy. CONCLUSIONS OF LAW 1. The criteria are not met for an initial rating in excess of 10 percent for right lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. 2. Prior to March 9, 2020, the criteria are not met for an initial rating in excess of 10 percent for left lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, DC 8520. 3. From March 9, 2020, the criteria are met for a disability rating of 40 percent for left lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(a), 4.1, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2010 to January 2012. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2017, June 2017, and October 2020 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). In April 2017, the Veteran submitted a Notice of Disagreement with the March 2017 rating decision. In October 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is of record and has been reviewed. This case was previously before the Board in January 2020. At that time, the Board remanded the case for additional development. Concerning the increased rating claims for the Veteran's back, unfortunately, for the reasons discussed below, another remand is required. See Stegall v. West, 11. Vet. App. 268 (1998). Under Note 1 of the General Formula, when adjudicating disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. Because the increased rating claims for the Veteran's back disability are on appeal, the Board will address his service-connected bilateral lower extremity radiculopathy as well. In a June 2017 rating decision, the RO granted service connection for the Veteran's left lower extremity radiculopathy, rated as 10 percent disabling, effective February 28, 2017. In an October 2020 rating decision, the Veteran's service-connected lumbosacral strain was increased from 10 percent to 40 percent, effective March 9, 2020, and he was granted service connection for his right lower extremity radiculopathy, rated at 10 percent, also effective March, 9, 2020. As this does not constitute full grants, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 1. An initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. 2. Prior to March 9, 2020, an initial rating in excess of 10 percent for left lower extremity radiculopathy is denied. 3. From March 9, 2020, a disability rating of 40 percent, for left lower extremity radiculopathy is granted. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Legal Criteria Under DC 8520, for paralysis of the sciatic nerve, the minimum 10 percent rating is assigned for mild incomplete paralysis of the external popliteal nerve. 38 C.F.R. § 4.124a, DC 8520. A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. Id. A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. Id. A 60 percent rating is assigned for severe paralysis of the sciatic nerve with marked muscular atrophy. Id. The maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Id. The term "incomplete paralysis" 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 partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. The terms "mild," "moderate," "moderately severe," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence. 38 C.F.R. § 4.6. Factual Background Prior to March 9, 2020, the Veteran's left lower extremity radiculopathy was rated 10 percent under DC 8520 effective February 28, 2017. 38 C.F.R. § 4.124a, DC 8520. The Veteran's right lower extremity radiculopathy is rated 10 percent under DC 8520 effective March 9, 2020. Id. In a February 2016 VA examination report, the Veteran had no signs or symptoms of radiculopathy. In a May 2017 VA examination report, the Veteran had signs or symptoms of radiculopathy. He had no constant pain in either lower extremity, no intermittent pain in his right lower extremity but moderate intermittent pain in his left lower extremity, no paresthesias and/or dysesthesias in either lower extremity, and no numbness in either lower extremity. The VA examiner indicated that the nerve root was involved in the sciatic nerve and characterized the Veteran's radiculopathy as not affecting in his right lower extremity but mild in his left lower extremity. In a November 2019 Disability Benefits Questionnaire (DBQ), the Veteran had signs and symptoms or radiculopathy. He had no constant pain in his right lower extremity, moderate constant pain in his left lower extremity, no intermittent pain in either lower extremity, no dull pain in either lower extremity, no paresthesias and/or dysesthesias in either lower extremity, and no numbness in either lower extremity. In a March 2020 VA examination report, the examiner noted that the Veteran did not have muscle atrophy. Signs and/or symptoms of radiculopathy included moderate constant pain in the right lower extremity, severe constant pain in the left lower extremity, mild intermittent pain in the right lower extremity, severe intermittent pain in the left lower extremity, mild paresthesias and/or dysesthesias in the right lower extremity, severe paresthesias and/or dysesthesias in the left lower extremity, no numbness in the right lower extremity, and severe numbness in the left lower extremity. The examiner noted that both sciatic nerves were involved and characterized the Veteran's right lower extremity radiculopathy as "mild," and his left lower extremity radiculopathy as "severe." The Board notes that throughout the appeal period, the Veteran received medical treatment for his radiculopathy. These treatment reports did not measure the severity of his lower extremity radiculopathy and did not evaluate the nature, extent, and severity during the appeal period. Analysis Based on the above evidence, the Board concludes that prior to March 9, 2020, the date of the Veteran's most recent VA examination, an initial rating in excess of 10 percent for left lower extremity radiculopathy is not warranted. 38 C.F.R. § 4.124a, DC 8520. Prior to this examination, the Veteran's left lower extremity radiculopathy symptoms more nearly approximated "mild" incomplete paralysis of the sciatic nerve. Id. From March 9, 2020, the Board concludes that a 40 percent rating is warranted for the Veteran's left lower extremity radiculopathy because his symptoms more nearly approximate "moderately severe" incomplete paralysis of the sciatic nerve. Id. While at times the Veteran's left lower extremity symptoms have been characterized as "severe," he has never been diagnosed with muscle atrophy, which is required for the higher 60 percent rating. Id. Rather, overall, prior to March 9, 2020, the Veteran's left lower extremity radiculopathy more nearly approximates a 10 percent rating, and from March 9, 2020, it more nearly approximates a 40 percent rating. Id. Additionally, based on the above evidence, the Board concludes that at no time during the appeal period has the Veteran's right lower extremity radiculopathy symptoms warranted an initial rating in excess of 10 percent. Id. His right lower extremity symptoms more nearly approximate "mild" incomplete paralysis of the sciatic nerve. They have not been characterized as "moderate." Id. The Board finds that the February 2016, May 2017, and March 2020 VA examinations and the November 2019 DBQ, describing the Veteran's lower extremity radiculopathy symptoms, are the most probative evidence of record because the examiners reviewed the claims file and provided detailed rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran is competent (qualified) to observe his lower extremity radiculopathy symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms and apply them to the applicable VA diagnostic criteria. Additionally, he does not have the training or credentials to determine the proper VA disability evaluations concerning his bilateral lower extremity disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Because of this, prior to March 9, 2020, an initial rating in excess of 10 percent for left lower extremity radiculopathy is not warranted. From March 9, 2020, a 40 percent rating for left lower extremity radiculopathy is warranted. Additionally, at no time during the appeal period has an initial rating in excess of 10 percent for right lower extremity radiculopathy been warranted. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Additionally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not specifically argued, and the record does not otherwise reflect, that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. The Veteran has not asserted that he was unable to work because of his service-connected disabilities, nor does the record reflect that he could not work because of his service-connected disabilities. Accordingly, the Board concludes that the issue of TDIU has not been raised. The Board is sympathetic to the Veteran's reports and understands that his lower extremity radiculopathy has significant effects on his daily life. However, his symptoms more nearly approximate the assigned ratings in this decision. The Board also notes that this decision does not leave the Veteran without recourse. If his disabilities should worsen in the future, he is free to file claims for increased disability ratings at that time. REASONS FOR REMAND 1. Prior to March 9, 2020, an initial rating in excess of 10 percent for a lumbosacral strain is remanded. 2. From March 9, 2020, a disability rating in excess of 40 percent for a lumbosacral strain is remanded. In a March 2020 VA examination report, the examiner noted that the Veteran's initial range of motion (ROM) testing was abnormal or outside of the normal range. Forward flexion was to 30 degrees, extension was to 10 degrees, right and left lateral flexion were to 20 degrees, and right and left lateral rotation were to 20 degrees. The examiner reported that the Veteran was able to perform repetitive-use testing and that there was no additional loss of function or range of motion after three repetitions. Because of this, the section labeled "ROM after 3 repetitions" was left blank. In the section labeled "Repeated use over time," the examiner noted that the Veteran was not being examined immediately after repetitive use over time. The examiner reported that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over time. The examiner described this in terms of range of motion as forward flexion to 0 degrees, extension to 0 degrees, right and left lateral flexion to 0 degrees, and right and left lateral rotation to 0 degrees. In the section labeled "Flare ups," the examiner noted that the examination was not being conducted during a flare-up. The examiner reported that pain, fatigue, weakness, and lack of endurance significantly limited the Veteran's functional ability with flare-ups. Similar to the previous section, the examiner described this in terms of range of motion as forward flexion to 0 degrees, extension to 0 degrees, right and left lateral flexion to 0 degrees, and right and left lateral rotation to 0 degrees. The Board finds these examination results to be somewhat confusing. In the "Repeated use over time" and "Flare ups" sections, was the examiner reporting that the Veteran's range of motion was nothing (0 degrees to 0 degrees)? Or was the examiner just noting that the Veteran's range of motion was just unchanged from his initial range of motion testing and his observed repetitive use? The Board is unsure of the results, and because of this, a VA opinion clarifying the Veteran's range of motion is necessary. Additionally, if the VA examiner clarifies that during repeated use over time and flare ups that the Veteran's range of motion was 0 degrees to 0 degrees, for all motions, the examiner should opine as to whether this lack of motion qualifies as "functional ankylosis." See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, at *23 (Vet. App. Apr. 16, 2021). The matters are REMANDED for the following actions: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims. 3. After the above has been completed, obtain an addendum opinion to determine the current severity and manifestations of the Veteran's service-connected back disability. The claims file must be reviewed by the examiner. The most up-to-date Disability Benefits Questionnaire(s) must be employed, and all opinions and conclusions must be supported by a rationale. Additionally, the VA examiner should clarify as to the Veteran's range of motion during repeated use over time and during flare ups. Does the Veteran have no range of motion at all (0 to 0 degrees) or is his range of motion unchanged from his initial range of motion results? If the examiner determines that the Veteran has no range of motion at all during repeated use over time and during flare ups, does this qualify as "functional ankylosis?" 4. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.