Citation Nr: 22010212 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 14-34 574 DATE: February 22, 2022 ORDER Entitlement to a rating of 20 percent for incomplete paralysis of the right femoral nerve from July 14, 2014 is granted. REMANDED Entitlement to a rating in excess of 20 percent for service-connected thoracolumbar spine disability prior to January 21, 2020 is remanded. Entitlement to a rating in excess of 40 percent for service-connected thoracolumbar spine disability is remanded. Entitlement to a rating in excess of 20 percent for incomplete paralysis of the right femoral nerve is remanded. Entitlement to a rating in excess of 20 percent for service-connected right shoulder disability is remanded. FINDING OF FACT From July 14, 2014, the Veteran's radiculopathy of the right lower extremity manifested as moderate incomplete paralysis of the femoral nerve. CONCLUSION OF LAW From July 14, 2014, the criteria for a disability rating of 20 percent for radiculopathy affecting the right femoral nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 2003 to August 2003 and from April 2004 to May 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that assigned a 10 percent rating for myofascial pain of the right trapezius muscle, after granting service connection for the same. An effective date of January 27, 2012 was assigned. While on appeal, a February 2019 rating decision increased the rating assigned for the Veteran's right shoulder disability to 20 percent, effective from June 2018. A June 2020 rating decision determined that the Veteran's service connected shoulder disability involved his thoracolumbar spine as well as his right shoulder. That decision thereby granted service connection for lumbar strain. A separate 20 percent rating for lumbar strain, effective January 27, 2012. A separate 10 percent rating was also assigned for right lower extremity radiculopathy (right femoral nerve) effective June 12, 2020. However, rather than providing notice of the grant of service connection and assigned ratings, the RO provided the Veteran a supplemental statement of the case that addressed the issues as increased ratings. To avoid prejudicing the Veteran, the Board has continued with adjudicating the appeal along those lines. By a rating decision dated in December 2020, the 20 percent rating assigned for lumbar strain was increased to 40 percent, effective from January 21, 2020. In December 2020, the Board issued a decision that granted an increased rating from 20 percent to 40 percent for the thoracolumbar spine disability from January 21, 2020, but denied a rating in excess of 20 percent prior to January 21, 2020. The Board also granted a 10 percent rating, but no more, for incomplete paralysis of the right femoral nerve from August 4, 2016. The decision also denied a rating in excess of 20 percent for the right shoulder disability. The Veteran appealed the decision to the United States Court of Appeals of Veterans Claims (Court). In October 2021, the Court granted a Joint Motion for Partial Remand (JMPR) of the December 2020 Board decision and remanded the issued on appeal for additional development. The Veteran testified before the undersigned Veterans Law Judge in a November 2017 video conference hearing. A transcript of the hearing is of record. 1. Entitlement to an increased rating for incomplete paralysis of the right femoral nerve The JMPR found that the Board erred by not adequately addressing whether a separate rating for incomplete paralysis of the right femoral nerve is warranted prior to August 4, 2016. Reference was made to evidence from 2014 reflecting that the Veteran had symptoms of right thigh pain radiating from his right shoulder and back. Upon readjudication, the Court directed that the Board shall ensure that any determination it reaches regarding the severity of the Veteran's right femoral nerve disability is consistent with the Court's decision in Johnson v. Wilkie, 30 Vet. App. 245, 254 (2018) which requires the Board to explain how it defines terms of degree as applied to the Veteran's symptoms. With respect to severity, paralysis of the anterior crural (femoral) nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the quadriceps extensor muscles warrants a 40 percent evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8526. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture of 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 is mild, or at most, the moderate degree. The disability ratings for peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). At the outset, the Board concludes that a rating for partial paralysis of the right femoral nerve is warranted from July 14, 2014. The contemporaneous medical evidence documents complaints of pain radiating from his right shoulder blade to the right buttocks across the front of the right thigh, stopping midway down the right thigh. A medical record from August 2014 indicates that the Veteran had numbness on the right side of his leg, and in a medical record from November 2014, the Veteran reported worsening pain in his back that radiates down to his right leg. The Board also concludes that the Veteran's symptoms more closely approximate those warranting a 20 percent evaluation for the entire appeal period. See 38 C.F.R. § 4.7. Although the June 2014 and November 2014 VA treatment records note radiating pain and the August 2014 medical record notes numbness, the November 2014 treatment record also noted that the Veteran's gait was steady, but that he walked with a cane. This indicates that the radiating pain identified during the examination was more than wholly sensory, that it slightly affected his motor function as well, which is more consistent with a 20 percent rating. The Board recognizes that a January 2020 VA examination characterized the Veteran's intermittent pain and mild paresthesias and/or dysesthesias of the right lower extremity as mild, with a normal sensory examination and normal reflexes of 2+. However, it is also noted that the Veteran reported that he constantly uses a cane as an assistive device and tries not to move around his house as much when his spouse is not at home due to risk of falling when no one else is at home. A June 2020 VA examination report similarly characterized the Veteran's incomplete paralysis of the femoral nerve as mild in nature. A sensory examination of the right lower extremity showed decreased sensation of the right upper anterior thigh as well as a positive straight leg raising test. It was again noted that the Veteran regularly uses a cane as an assistive device. This more closely aligns with a moderate incomplete paralysis than a severe incomplete paralysis. The January 2021 VA examiner noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The Veteran had normal strength in both lower extremities, and his reflexes for both lower extremities were normal at 2+. The examination showed a negative straight leg raising test and a sensory examination of both lower extremities showed normal sensation to light touch. A VA medical record from November 2021 also notes that the Veteran does not have any back pain radiating down his legs, but that he does have some dysesthesia in the right anterior lateral thigh. The January 2021 VA examination report and the November 2021 VA treatment record suggest that the symptoms of the Veteran's radiculopathy of the right lower extremity result in mild incomplete paralysis rather than a moderate incomplete paralysis. However, taken its totality, and after resolving all doubt in his favor, the Board finds that the majority of the medical evidence shows that the Veteran's radiculopathy of the right lower extremity symptoms most closely aligned with those of moderate incomplete paralysis from July 14, 2014 forward. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. A separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the evidence persuasively favors a 20 percent rating warranted from July 14, 2014. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.400, 4.3, 4.7, 4.124a, Diagnostic Code 8526. REASONS FOR REMAND 2. Entitlement to increased ratings for thoracolumbar spine disability. 3. Entitlement to a rating in excess of 20 percent for incomplete paralysis of the right femoral nerve In its March 2018 Remand, the Board found that earlier VA examinations did not adequately assess the severity of the Veteran's service-connected thoracolumbar spine disability because they did not comply with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). Reference was made to the requirements of 38 C.F.R. § 4.59 as well as the examiners' failure to adequately estimate the impact of repetitive use over time. In light of that finding, the JMPR determined that the Board's December 2020 decision should have addressed whether a retrospective medical opinion must be obtained to address the severity of the Veteran's thoracolumbar spine disability prior to the January 2020 VA examination. the JMPR also found that the Board did not adequately address whether the January 2020 VA examination supported an assigment of a 40 percent disability rating prior to the date of the examination. Reference was also made to the Veteran's report being unable to get out of bed or sit up when his back locks up, and whether such would have supported the earlier assignment of a 40 percent rating. The record also suggests that there is potentially pertinent medical evidence that has not been associated with the claims and that the Veteran's back condition may have worsened since the last examination. Specifically, in an August 2021 VA treatment record, the Veteran reported being treated by a private chiropractor. Those records should be obtained. Additionally, the Veteran reported in a November 2021 VA treatment record that he had recently had a back MRI, but there is no such MRI of record in the claims file. Moreover, in a VA treatment record from June 2021, the Veteran reported that he was in a motor vehicle accident in May 2021, in which another vehicle ran a stop sign and hit the passenger side of his vehicle. He reported experiencing increased pain in his back shoulder and neck since the accident. The Board concludes that a new VA thoracolumbar examination, which includes a neurological examination, is warranted once the potentially pertinent medical evidence is obtained and associated with the claims, to determine the current severity of the Veteran's service-connected thoracolumbar spine and right femoral nerve disabilities. Such must include a retrospective opinion. 4. Entitlement to a rating in excess of 20 percent for service-connected right shoulder disability is remanded. The JMPR found that the remand of the Veteran's claim for a rating in excess of 20 percent for his service-connected right shoulder disability was required because the June 2020 VA examination report the Board relied on was inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) ("A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.") The Court noted that an adequate medical opinion "is based upon consideration of the veteran's prior medical history and examination and also describes the disability in sufficient details so that the Board's evaluation of the claimed disability will be a fully informed one." D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). In this case, the JMPR found the June 2020 VA examination to be inadequate because the examiner made contradictory statements regarding the Veteran's right shoulder pain and functionality. Specifically, the examiner reported that the Veteran did not suffer from pain on weightbearing, but then indicated that the Veteran had difficulty carrying and lifting his right arm due to shoulder pain. These findings appear to be inconsistent and preclude proper evaluation of the Veteran's disability under weightbearing conditions as required by Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Additionally, the JMPR noted that the June 2020 VA examination reported that the Veteran had significant limitation during repetitive-use over time and during flare-ups of his right shoulder condition, but when asked to portray the additional levels of impairment due to pain in terms of range of motion (ROM), the examiner merely restated the initial ROM measurements. This finding also appears inconsistent and does not allow for review for compliance with Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017) and Lyles v. Shulkin, 29 Vet. App. 107, 120 (2017). Consequently, remand is required for the AOJ to obtain a new VA right shoulder examination that resolves these inconsistencies and provides an adequate evaluation of the functional limitations caused by the Veteran's service-connected right shoulder disability. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records, specifically the back MRI referenced by the Veteran in a November 2021 VA treatment record. 2. With any necessary assistance from the Veteran, make all efforts to obtain all relevant private medical treatment records for the Veteran's thoracolumbar spine and right shoulder disabilities for the entire appellate period, specifically the private chiropractic treatment records referenced in a June 2021 VA treatment record, in accordance with the duties set forth in 38 C.F.R. § 3.159(c). Document all requests for information, as well as responses in the claims file. 3. After the above development has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected thoracolumbar spine and right femoral nerve disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should also provide a retrospective opinion regarding the severity of the thoracolumbar spine disability prior to January 21, 2020. The opinion should address the extent of the Veteran's functional loss (i) after repetition over time and, separately (ii) during flare-ups for the period prior to January 21, 2020. In formulating the retrospective opinion, the medical professional should consider the October 2018 VA examination noting pain with forward flexion and extension, and the October 2012 VA examination noting pain with all motion of the thoracolumbar spine and regular flare-ups of back pain. To the examiner's best ability, the additional range of motion loss should be described in degrees based on a review of the information prior to January 21, 2020. The medical evidence and the Veteran's lay descriptions of repeated use or flare-up severity, frequency, duration, and/or functional loss should be considered. The examiner should glean information regarding the flares' severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Rationale must be provided. Merely stating that a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts) will not be sufficient if no explanation is provided. 4. After the above development has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In doing so, the examiner must test whether the Veteran's active motion, passive motion, and pain with weightbearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.