Citation Nr: 22014941 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 14-25 440 DATE: March 15, 2022 ORDER Entitlement to an initial disability rating of 40 percent, but no higher, as of March 29, 2012, for lower left extremity radiculopathy associated with a history of herniated L5, S1 intervertebral disc syndrome is granted. REMANDED Entitlement to an increased disability rating in excess of 10 percent for a torn knee meniscus and patellofemoral joint pain, status post subtotal medial meniscectomy and arthroscopic lateral, to include mild degenerative changes, is remanded. FINDING OF FACT The Veteran's lower left extremity radiculopathy associated with a history of herniated L5, S1 intervertebral disc syndrome is manifest by no more than moderately severe incomplete paralysis. CONCLUSION OF LAW The criteria for a disability rating of 40 percent, but no higher, for lower left extremity radiculopathy associated with a history of herniated L5, S1 intervertebral disc syndrome have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the United States Marine Corps from September 1996 to September 2000. These matters come before the Board of Veterans' Appeals (Board) from an appeal of a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were before the Board in January 2018, when they were remanded for examinations and medical opinions. The Board finds that there has been substantial compliance with its remand directives and will proceed to a determination regarding the Veteran's left lower extremity radiculopathy. See Stegall v. West, 11 Vet. App. 268, 271 (Vet. App. 1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (Vet. App. 1999) (clarifying that substantial compliance with Board remand is required). The Veteran testified before a Veterans Law Judge in May 2017, and then again before the undersigned Veterans Law Judge in October 2021, and transcripts of the hearings have been associated with the claims file. Neither the Veteran nor his representative raise any remaining issues with the duty to notify or duty to assist regarding the Veteran's claim regarding the Veteran's left lower extremity radiculopathy. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board regrets further delay, but a remand is necessary to obtain an adequate medical opinion regarding the Veteran's torn knee meniscus and patellofemoral joint pain, status post subtotal medial meniscectomy and arthroscopic lateral, to include mild degenerative changes. 1. Entitlement to an initial disability rating of 40 percent, but no higher, as of March 29, 2012, for lower left extremity radiculopathy associated with a history of herniated L5, S1 intervertebral disc syndrome is granted. The Veteran asserts he is entitled to a disability rating in excess of 10 percent prior to May 26, 2016, and 20 percent thereafter. See, e.g., July 2012 notice of disagreement. The Veteran has a current diagnosis of lower left extremity radiculopathy, and incomplete paralysis of the left sciatic nerve. See June 2019 VA radiculopathy examination. The Veteran underwent an MRI in April 2012, which documented that the Veteran had compression of the left S1 nerve root as it enters the lateral recess. See July 2012 letter from D.W.Q., M.D.. Although the most recent VA examination is almost three years old, the Veteran has indicated that his symptoms have not increased substantially since 2019, and that he has hit a plateau. See October 2021 hearing testimony. The Veteran contends that he is entitled to a higher rating because his lower left extremity radiculopathy manifests in moderately severe pain. See, e.g., April 2018 letter from the Veteran. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various DCs are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based 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 picture 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 is for the mild, or at most, the moderate degree. The disability ratings for the 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). Regarding impairment of motor functions, the evidence of record indicates that the Veteran's lower left extremity radiculopathy results in antalgic gait. See, e.g., June 2019 VA radiculopathy examination. Regarding trophic changes, there is no evidence of trophic changes. See June 2019 VA radiculopathy examination. Regarding sensory disturbance, the Veteran's radiculopathy often manifests as numbness and tingling, occasionally with pressure as if his foot was going to explode. See, e.g., April 2012 wife statement. In 2012, the Veteran's physician wrote that the numbness was increasing. See July 2012 letter from D.W.Q., M.D.. Another of the Veteran's physicians observed in 2017 that "[the Veteran's] left Lower Extremity Radiculopathy has caused weakness on the left leg to the foot as well as left sided numbness and tingling in his outer three toes." See May 2017 letter from T.D.T., M.D.. The most recent VA examination found that the Veteran has decreased sensation on his left side in the upper anterior thigh, the thigh/knee, the lower leg/ankle, and the foot/toes. See June 2019 VA radiculopathy examination. This echoes the Veteran's 2016 back examination, which found decreased sensation in the Veteran's lower leg/ankle and foot/toes. See May 2016 VA back examination. Regarding loss of reflexes, there is some evidence that the Veteran's left lower extremity radiculopathy has affected his reflexes. The most recent VA examination details that the Veteran has hypoactive reflexes in his left ankle. See June 2019 VA radiculopathy examination. Regarding pain, this appears to be one of the primary manifestations of the Veteran's radiculopathy. Starting shortly after his claim, the Veteran reported that the pain in his leg was getting worse. See April 2012 physical therapy progress note. The Veteran reported that the pain was a 10/10 on the pain scale. That same month, the Veteran's wife provided a statement documenting her observations of four to five "incapacitating episodes" per year, where the Veteran was in excruciating pain, with shooting pains down his left leg all the way to his foot. See April 2012 wife statement. During these times, the Veteran's wife reports that he is functionally incapacitated. See id. A few months later, the Veteran's physician recorded that the Veteran's pain was increasing. See July 2012 letter from D.W.Q., M.D.. That same month, a representative of the Veteran's service organization observed the Veteran in pain. See September 2012 letter from D.A.C.. That letter detailed that the Veteran cannot sit or stand for long periods because of his sciatic nerve pain. See id. At one point during the hour-long meeting, the Veteran was forced to lie down on the floor due to his sciatic nerve pain. See id. By April 2016, the Veteran's physician again reported that his pain was gradually worsening. See April 2016 progress note. By May 2017, the Veteran's pain resulted in the Veteran's physician writing "[the Veteran's] Left Lower Extremity Radiculopathy causes moderately severe pain in the left leg to the foot compared to the right." See May 2017 letter from T.D.T., M.D.. The Veteran's most recent VA examination considered the Veteran's pain to be "moderate." See June 2019 VA radiculopathy examination. However, it should be noted there was no "moderately severe" option for the examiner to check. See id. This echoes the Veteran's 2016 back examination. See May 2016 VA back examination. Once again, in 2016 there was no "moderately severe" option for the examiner to check. See id. On the other hand, however, the Veteran did have a March 2015 VA examination which indicated the Veteran did not have radiculopathy. See March 2015 VA back examination. The Veteran has explained that he did make a statement to the March 2015 VA back examiner that he did have pain down his left leg and numbness in his toes, but that statement did not appear to be recorded. See April 2018 letter from the Veteran. Against the amount of evidence documenting the Veteran's radiculopathy, the Board finds the March 2015 VA back examination to have very low probative value regarding the Veteran's pain from his left lower extremity radiculopathy. Regarding muscle atrophy, there is some evidence in the record of muscle atrophy. Although the most recent VA examination found no muscle atrophy, the Veteran's personal physician has indicated that his "Left Lower Extremity Radiculopathy muscle weakness from sciatic nerve irritation causes instability at times." See June 2019 VA radiculopathy examination; See May 2017 letter from T.D.T., M.D.. Regarding complete paralysis, there is no evidence of complete paralysis. Based on the above, the Board finds that the disability is primarily manifest by pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderately severe incomplete paralysis. The Board has considered all other potentially applicable DCs, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different DC is not warranted. In conclusion, the Board finds that the evidence of record persuasively weighs for the Veteran's claim for a compensable rating of 40 percent, but no higher. As the evidence of record persuasively weighs against a rating in excess of 40 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, entitlement to a disability rating of 40 percent, but no higher, for lower left extremity radiculopathy associated with a history of herniated L5, S1 intervertebral disc syndrome is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS FOR REMAND 1. Entitlement to an increased disability rating in excess of 10 percent for a torn knee meniscus and patellofemoral joint pain, status post subtotal medial meniscectomy and arthroscopic lateral, to include mild degenerative changes, is remanded. The Veteran asserts that his service-connected torn knee meniscus and patellofemoral joint pain warrants ratings under other diagnostic codes than DC 5259. See, e.g., July 2012 notice of disagreement. The Veteran has a diagnosis of left knee meniscal tear. See June 2019 VA knee examination. Although the most recent VA examination is almost three years old, the Veteran has indicated that his symptoms have not increased substantially since 2019, and that he has hit a plateau. See October 2021 hearing testimony. The Board acknowledges the Veteran's desire for the Board to bring his claim to a conclusion. See, e.g., October 2021 hearing testimony. The Board regrets further delay, but a remand is necessary to obtain an adequate medical opinion. For a VA joints examination to be adequate, the examination must portray the extent of the claimant's functional loss or limitation due to pain and the other factors set forth in 38 C.F.R. §§ 4.40 and 4.45, including such functional loss or limitation with repetitive use and on flare-up. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (Vet. App. 1995). Where feasible, these determinations should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. DeLuca, 8 Vet. App. at 206; Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (Vet. App. 2017). When flare-ups are indicated, the examiner must offer a flare opinion based on an estimate derived from information procured from relevant sources, including the lay statements the veteran provides after he is asked to describe functional limitation. When examiners state that they cannot offer a flare opinion without resort to speculation, that opinion is adequate only when it is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. Sharp, 29 Vet. App. at 37. While the record contains a VA examination that the Veteran asserts covers his symptoms of his torn left knee meniscus and patellofemoral joint pain, the examination does not comply with the requirements in Sharp, 29 Vet. App. at 34-36. The examiner did not elicit relevant information regarding any additional functional loss suffered during repeated use over time and flare-ups. See June 2019 VA knee examination. Instead, the examiner indicated that pain, weakness, fatigability, or incoordination do significantly limit functional ability with both repeated use over time and with flare-ups but did not estimate that limitation in range of motion (ROM). See id. Furthermore, the examiner did not state whether this lack of an estimate was predicated on a lack of knowledge in the medical community or the insufficient knowledge of the specific examiner. See id. In fact, this is information that is lacking in all the Veteran's VA knee examinations. See October 2015 VA knee examination; June 2012 VA knee examination. For these reasons, a remand is necessary to obtain a medical opinion that complies with Sharp. In addition to a current opinion, that opinion should provide a retrospective opinion covering the period on appeal. In addition, the rating criteria pertinent to the evaluation of the Veteran's knee disabilities changed effective February 7, 2021. See, e.g., Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Accordingly, additional development is necessary to assist the Board in determining whether the evidence supports assigning the Veteran higher disability ratings under the new criteria. On remand, the Decision Review Operations Center (DROC) should obtain an additional opinion from an appropriate medical professional assessing the severity of the Veteran's knee disabilities under the revised rating criteria. The matters are REMANDED for the following action: 1. Contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The DROC should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating any documents with the file, afford the Veteran a new VA examination of his torn knee meniscus and patellofemoral joint pain, status post subtotal medial meniscectomy and arthroscopic lateral, to include mild degenerative changes, if and when he can attend one. The claims file and a complete copy of this Remand should be reviewed, and all appropriate testing should be conducted. 3. The left knee should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary or is not medically appropriate in this case, he or she should clearly explain why that is so. 4. The examiner is asked to express an opinion regarding whether pain, weakness, fatigability, or incoordination cause additional functional impairment of the left knee spine on repeated use over time OR during flare-ups. The examiner should assess additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. The examiner is asked to provide an opinion assessing the severity of the Veteran's knee disabilities under the revised rating criteria of February 7, 2021. 5. If the Veteran is not being observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional loss during such events based on the Veteran's description of their severity, frequency, duration, and/or functional loss manifestations. 6. If the Veteran is found to have additional functional impairment of the lumbar spine on repeated use over time or during flare-ups, the DROC should obtain a retrospective medical opinion regarding the functional limitations of the Veteran's torn knee meniscus and patellofemoral joint pain, status post subtotal medial meniscectomy and arthroscopic lateral, to include mild degenerative changes dating back from the June 2019 VA knee examination to March 29, 2011. 7. The examiner should elicit relevant information as to the Veteran's flare-ups and repetitive use or ask him to describe the additional functional loss, if any, he suffered during flare-ups and repetitive use over the pendency of his appeal, and then estimate his functional loss based on all the evidence of record, including the Veteran's lay information. 8. The examiner is instructed not to base the opinion on the preventative treatment measures used by the Veteran to treat his knee condition. 9. If the examiner cannot provide an opinion as to additional loss of motion on repeated use or during a flare-up without resorting to mere speculation, the examiner must make clear that he or she has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (Continued on the next page) 10. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Maisel, S. Alexander 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.