Citation Nr: 21042079 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 17-39 802A DATE: July 11, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to July 8, 2016 and in excess of 20 percent thereafter for service-connected left lower extremity (LLE) radiculopathy of the sciatic nerve is denied. Entitlement to an increased disability an initial rating in excess of 20 percent for service connected LLE radiculopathy of the femoral nerve is denied. REMANDED Entitlement to service connection for left upper extremity radiculopathy is remanded. Entitlement to service connection for right upper extremity radiculopathy is remanded. Entitlement to a special home adaptation grant is remanded. Entitlement to specially adapted housing is remanded. Entitlement to special monthly compensation by reason of being housebound or based on the need of regular aid and attendance is remanded. FINDINGS OF FACT 1. Prior to July 8, 2016, the Veteran's LLE radiculopathy resulted in no more than mild incomplete paralysis of the sciatic nerve. 2. Since July 8, 2016, his LLE radiculopathy resulted in no more than moderate incomplete paralysis of the sciatic nerve. 3. For the entire appeal period, his LLE radiculopathy resulted in no more than moderate incomplete paralysis of the femoral nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to July 8, 2016 and in excess of 20 percent thereafter for LLE radiculopathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8520. 2. The criteria for an initial rating in excess of 20 percent rating for LLE radiculopathy of the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, DC 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1994 to May 1996. This case comes to the Board of Veterans' Appeals (Board) from June 2015 and June 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In August 2018, September 2019, and May 2020, the Board remanded the case for additional development and it now returns for appellate review. The Board notes that additional evidence was associated with the record since the November 2020 supplemental statement of the case. However, such evidence is not relevant to the issues before the Board. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 1. Entitlement to an initial rating in excess of 10 percent prior to July 8, 2016 and in excess of 20 percent thereafter for service-connected left lower extremity radiculopathy of the sciatic nerve. 2. Entitlement to an increased disability an initial rating in excess of 20 percent for service-connected left lower extremity radiculopathy of the femoral nerve. The Veteran contends that he is entitled to higher ratings for his LLE radiculopathy. In this regard, a 10 percent rating percent prior to July 8, 2016, and in excess of 20 percent thereafter for LLE radiculopathy of the sciatic nerve has been assigned pursuant to DC 8520. Additionally, a separate rating of 20 percent for LLE radiculopathy of the femoral nerve has been assigned pursuant to DC 8526. The Veteran was granted service connection for his LLE radiculopathy in June 2017, with an effective date of April 13, 2017. However, in September 2019, the Veteran was granted an effective date of December 16, 2014, thus, the appeal period is the date of service connection was granted for his LLE radiculopathy of the sciatic nerve. With regard to the Veteran's increased rating claim for his LLE radiculopathy of femoral nerve, service connection was granted in April 2019, which an effective date of October 22, 2018. DC 8520 addresses the sciatic nerve and provides for a 10 percent rating where there is mild incomplete paralysis. A 20 percent rating is warranted where there is moderate incomplete paralysis. A 40 percent rating is for application where there is moderately severe incomplete paralysis. A 60 percent rating is warranted where there is severe incomplete paralysis with marked muscular atrophy. A 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. 38 C.F.R. § 4.124a, DC 8520. DC 8526 addresses the femoral nerve and provides for a 10 percent rating where there is mild incomplete paralysis. A 20 percent rating is warranted where there is moderate incomplete paralysis. A 30 percent rating is for application where there is severe incomplete paralysis. A maximum 40 percent rating is assigned for complete paralysis of the femoral nerve; paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a, DC 8526. The words "moderate" and "severe" are not defined in 38 C.F.R. §§ 4.120-4.124 a. In applying the schedular criteria for rating peripheral nerve disabilities, 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. However, the maximum rating which may be assigned for neuritis of the sciatic nerve not characterized by organic changes will be moderately severe incomplete paralysis. See 38 C.F.R. § 4.123. Regarding the LLE radiculopathy of the sciatic nerve prior to July 8, 2016, such disability warrants no more than a 10 percent rating as the Veteran's symptoms were manifested by no more than mild sensory impairment, which more nearly approximates a mild disability of the sciatic nerve. In this regard, prior to July 8, 2016, a December 16, 2014, VA nursing note indicated that the Veteran began having sharp pains radiating down his left leg within the past week. The Veteran stated this was the first time this has happened as pain was always on the right. Left lower extremity radiculopathy was not present at the June 2015 VA spine examination, however, including upon straight leg raise testing. Additionally, the Veteran's strength, sensory, and reflexes were normal. Based on the single report of sharp pains in 2014 and then a normal VA examination following that report, the Board finds that no more than mild radiculopathy was present, if radiculopathy was present at all, prior to July 8, 2016. The Board finds that the straight leg raise testing and other tests on the June 2015 VA examination are highly probative. Moreover, the Veteran denies symptoms of left lower extremity radiculopathy in the June 2015 VA examination. It is not until a July 2016 VA telephone note, which documents the Veteran's report of severe pain from his left hip to his left foot, that it can be ascertained that an evaluation higher than 10 percent is warranted. Radiating pain down the left leg was again noted in a private treatment record from July 2016. Nonetheless, the Board finds that a rating in excess of 20 percent for the Veteran's LLE radiculopathy of the sciatic nerve as of July 8, 2016 is not warranted. Moreover, the Board notes that the Veteran was also granted a separate 20 percent rating for LLE radiculopathy of the femoral nerve, effective October 22, 2018. However, such disabilities warrant no more than a 20 percent rating as the Veteran's symptoms were manifested by no more than moderate sensory impairment, which more nearly approximates a moderate disability of the sciatic and femoral nerves. As an initial matter, the June 2015, May 2017, October 17, 2018 VA examinations did not find that the Veteran's LLE femoral nerve root was affected. However, in a May 2017 VA back examination, the examiner noted that the Veteran's intermittent pain, paresthesias and/or dysesthesias, and numbness were mild. The examiner further noted that the severity of the Veteran's sciatic nerve was mild. In an October 2018 VA back and peripheral nerve examinations, the examiner noted that the Veteran had mild constant pain and numbness in the LLE, which involved the sciatic nerve. See October 17 and October 18, 2018 VA examinations. The examiner further explained that the severity was mild. However, the Veteran had another VA back examination in October 2018, which indicated that his constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness was moderate. See October 23, 2018 VA examination. The examiner noted that the severity of the Veteran's sciatic and femoral nerve radiculopathy was moderate. Additionally, another VA peripheral nerve examiner noted that the Veteran's constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness was severe. See October 22, 2018 VA examination report. However, the sensory examination noted that all of the Veteran's lower extremities were normal. The examiner concluded that the Veteran had LLE moderate incomplete paralysis of the sciatic and femoral nerves. In a November 2020 VA peripheral nerve examination, the examiner noted that the Veteran's constant pain, paresthesias and/or dysesthesias, and numbness was moderate. The examiner concluded that the severity of the Veteran's sciatic nerve was moderate, but his femoral nerve was normal. Moreover, the treatment records and VA examination reports generated throughout the appeal periods show subjective complaints of radicular pain with objective findings of mostly normal muscle strength and deep tendon reflexes, and some decreased sensation to light touch. The VA examinations and treatment records show that the Veteran's radiculopathy is manifest by wholly sensory symptomatology, which warrants no more than moderate rating for the femoral nerve. With respect to the sciatic nerve, the Board finds the VA examiners' characterizations of no more than moderate incomplete paralysis of the sciatic nerve to be most probative. The examiners have experience assessing many veterans and therefore have the perspective to more adequately characterize the Veteran's symptoms against the rating criteria. The Board acknowledges the Veteran's contentions that his service-connected radiculopathy warrants an increased evaluation. However, when reconciling the disability picture from the statements the Veteran has made throughout treatment and VA examinations, as well as the evidence derived from physical examination of the Veteran and clinical tests, higher evaluations are not warranted. The Board finds the preponderance of the evidence weighs against the assignment of increased evaluations for the Veteran's radiculopathy of the LLE at any point during the appeal periods. The benefit of the doubt rule does not apply, and the claims must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND 3. Entitlement to service connection for left upper extremity radiculopathy. 4. Entitlement to service connection for right upper extremity radiculopathy. In accordance with the May 2020 Board remand, the Veteran was afforded a VA examination in November 2020 in order to determine the nature and etiology of his right and left upper extremity radiculopathy. At such time, the examiner noted a diagnosis of left upper extremity radiculopathy. However, the examiner stated that the Veteran denied any right upper extremity neuropathy or radiculopathy, and there was currently no objective evidence of a right upper extremity peripheral nerve pathology. However, an October 2018 VA examination report indicates that the Veteran was diagnosed with right upper extremity radiculopathy. The November 2020 VA examiner further explained that the Veteran's left upper extremity symptoms appeared to be caused by a cervical spine issue for which he has not been evaluated. However, the examiner did not address whether the Veteran's bilateral upper extremity radiculopathy is proximately due to, the result of, or is aggravated by the service-connected lumbar-thoracic strain with lumbar spine intervertebral disc syndrome and scoliosis as required by the May 2020 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, an addendum opinion is necessary to decide the claim. 5. Entitlement to a special home adaptation grant. 6. Entitlement to specially adapted housing. The Veteran contends that he is entitled to specially adapted housing or a special home adaptation grant due to his service-connected disabilities. In this regard, the Veteran is currently service connected for several disabilities, to include bilateral lower extremity radiculopathy of the sciatic and femoral nerves, lumbar-thoracic strain with lumbar spine intervertebral disc syndrome and scoliosis, and left ankle achilles tendonitis. The Veteran has been granted a disability rating of 100 percent due to his service-connected disabilities. As an initial matter, the Board finds that the claims for entitlement to specially adapted housing or a special home adaptation grant is inextricably intertwined with the remanded claims. Thus, the adjudication of this matter is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision in the matter). Moreover, the May 2020 Board remand instructed the RO to obtain an opinion regarding whether the Veteran had loss of use in either leg and whether the Veteran's service-connected disabilities affected the functions of balance and propulsion as to preclude ambulation without the use of an assistive device, including during flare ups. However, the November 2020 VA examiner did not provide such opinions. Consequently, the Board finds that an additional remand is warranted, and the VA examiner must provide responses to all the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. Entitlement to special monthly compensation by reason of being housebound or based on the need of regular aid and attendance. As a decision on the remanded issues could significantly impact a decision on the issue of entitlement to special monthly compensation, the issues are inextricably intertwined. A remand of this claim is also needed. Moreover, in November 2020, the Veteran was afforded a VA examination for housebound status or permanent need for regular aid and attendance. At such time, the examiner noted that the Veteran was not confined to a bed and he did not have any restrictions. The examiner concluded that the Veteran was able to perform self-care, ambulate or travel beyond the premises of the home, or if hospitalized, beyond the ward of the clinic area. In contrast, in a March 2018 buddy statement from the Veteran's nephew, L.S, he reported that the Veteran's spouse helped him with getting dressed and bathing. A May 2018 private opinion from Dr. S.B. stated that the Veteran was unable to stand, walk, lift, or bend sufficiently due to his back and legs. Additionally, a May 2018 private opinion from Dr. H.S. noted that the Veteran lies down several times a day for hours at a time to relieve back and nerve pain. It was also noted that the Veteran's spouse assisted him with all activities of daily living such as bathing, getting dressed, maintaining household chores, and putting on shoes. An October 2018 VA examiner noted that the Veteran had poor tolerance for extended walking, standing, or driving. Moreover, a different October 2018 VA examiner noted that the Veteran spent the majority of the day in bed due to his lower extremities. The May 2020 Board remand instructed the RO to obtain an opinion regarding whether the Veteran had loss of use in either leg and whether the Veteran's service-connected disabilities affected the functions of balance and propulsion as to preclude ambulation without the use of an assistive device, including during flare ups. It also requested an opinion as to whether the Veteran's service-connected disabilities result in functional impairment requiring the aid and attendance of another person to assist with any of the following activities of daily living. However, the November 2020 VA examiner did not provide such opinions. While it did provide information that touched upon some of these issues, the information was not adequately supported by a rationale. Consequently, the Board finds that an additional remand is warranted, and the VA examiner must provide responses to all the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Return the record to the January November VA examiner for an addendum opinion for the Veteran's claims. The record and a copy of this Remand must be made available to, and reviewed by, the examiner. If the November 2020 examiner is not available, the record should be provided to an appropriate examiner so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion as to the following inquiry: (A) Is it at least as likely as not (50 percent or greater probability) that the bilateral upper extremity radiculopathy is proximately due to, the result of, or is aggravated by the service-connected lumbar-thoracic strain with lumbar spine intervertebral disc syndrome and scoliosis? In rendering an opinion, the examiner must note that the Veteran was previously diagnosed with right and left upper extremity radiculopathy. See October 2018 and November 2020 VA examination reports. The term "aggravation" in the above context refers to "any incremental increase in disability - any additional impairment of earning capacity -in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence." In formulating the above opinions, the examiner must consider all lay statements and assertions provided by the Veteran. 2. Obtain an addendum VA medical opinion to determine the current severity of his service-connected disabilities as they relate to his eligibility for specially adapted housing or special home adaptation grant. The Veteran's claims file should be made available to the examiner, and to the extent possible, any essential tests and studies should be accomplished. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities cause: (A) loss of use of both lower extremities so as to make necessary the regular and constant use of a wheelchair, brace(s), crutches, or cane(s) as a normal mode of locomotion, although occasional locomotion by other methods may be briefly possible; (B) loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to make necessary the regular and constant use of a wheelchair, brace(s), crutches, or cane(s) as a normal mode of locomotion, although occasional locomotion by other methods may be possible; or, (C) loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to make necessary the regular and constant use of a wheelchair, brace(s), crutches, or cane(s) as a normal mode of locomotion, although occasional locomotion by other methods may be possible. 3. Obtain an addendum VA medical opinion to determine the impact of his service-connected disabilities on his ability to ambulate independently, to perform activities of daily living, and the need for aid and attendance. After reviewing the evidence of record, the Veteran's lay statements, and the results of any testing performed at the examination, the examiner should address the following: (A) Discuss whether it is at least as likely as not that the Veteran's service-connected disabilities result in functional impairment requiring the aid and attendance of another person to assist with any of the following activities of daily living: dressing and undressing, keeping himself clean, feeding himself, attending to the wants of nature, adjusting any special prosthetic or orthopedic appliance, or protecting himself from hazards or dangers incident to his daily environment. (B) The examiner should indicate whether, as a result of service-connected disabilities, the Veteran is substantially confined to his dwelling and immediate premises. The examiner should only consider the severity of the Veteran's service-connected disabilities in addressing the aforementioned questions, rather than any impairment from a nonservice-connected disability. Although an independent review of the claims file is required, the examiner's attention is called to the following: a March 2018 buddy statement from the Veteran's nephew, L.S, reporting that the Veteran's spouse helped him with getting dressed and bathing; a May 2018 private opinion from Dr. S.B. stating that the Veteran was unable to stand, walk, lift, or bend sufficiently due to his back and legs; a May 2018 private opinion from Dr. H.S. noted that the Veteran lies down several times a day for hours at a time to relieve back and nerve pain and that the Veteran's spouse assisted him with all activities of daily living such as bathing, getting dressed, maintaining household chores, and putting on shoes. An adequate rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. A. Rocktashel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.