Citation Nr: 22015266 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 10-23 995 DATE: March 16, 2022 ORDER Entitlement to service connection for a left knee condition is granted. Entitlement to an initial rating in excess of 10 percent prior to February 12, 2020, and in excess of 20 percent on February 12, 2020, and thereafter, for the service-connected radiculopathy of the left lower extremity (sciatica) is denied. REMANDED Entitlement to service connection for a cervical spine disorder, to include as secondary to lumbosacral degenerative disc disease with disc protrusions, status post microdiscectomy and hemilaminectomy, is remanded. Entitlement to service connection for bilateral ulnar neuropathy, to include as secondary to service-connected lumbosacral degenerative disc disease with disc protrusion, status post microdiscectomy and hemilaminectomy, is remanded. Entitlement to an initial rating in excess of 10 percent prior to November 13, 2012, in excess of 20 percent from November 13, 2012, to January 13, 2016, in excess of 10 percent from January 14, 2016, to February 11, 2020, and in excess of 20 percent from February 12, 2020, and thereafter, for the service-connected lumbosacral degenerative disc disease with disc protrusions, status post microdiscectomy and hemilaminectomy, is remanded. FINDINGS OF FACT 1. The Veteran's left knee condition pre-existed his active service. This condition was aggravated by the Veteran's active service. The Veteran's left knee condition symptoms have manifested since service until present. 2. Prior to February 12, 2020, the Veteran's left lower extremity radiculopathy symptoms are manifest by no more than mild incomplete paralysis. 3. From February 12, 2020, and thereafter, the Veteran's left lower extremity radiculopathy symptoms are manifest by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee condition have been met. 38 U.S.C. §§ 1131, 1132, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for a disability rating in excess of 10 percent for left lower radiculopathy prior to February 12, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. 3. The criteria for a disability rating in excess of 20 percent for left lower radiculopathy on February 12, 2020, and thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2006 to November 2007. This matter was previously before the Board of Veterans' Appeals (Board) in April 2013 and December 2019 for further evidentiary development. During the pendency of the appeal, the Regional Office (RO) issued a rating decision in July 2020 (a) increasing the Veteran's rating for the service-connected lumbosacral degenerative disc disease with disc protrusions, status post microdiscectomy and hemilaminectomy, to 20 percent effective February 12, 2020, (b) increased the Veteran's rating for the service-connected left lower extremity (sciatic) radiculopathy, to 20 percent effective February 12, 2020, and (c) granted service connection for the Veteran's right knee strain. As such, although increased ratings have been granted, these issues remain in appellate status, as the maximum schedular ratings have not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the RO's grant of service connection for the Veteran's right knee strain is considered a full grant of the benefits sought and as such, the matter is no longer before the Board. Service Connection for Left Knee Condition Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Here, the evidence suggests that the Veteran had a left knee injury prior to service. While the Veteran's April 2006 enlistment examination showed no indication of a left knee disability, the April 2006 report of medical history contained in the service treatment records (STRs) reflects that the Veteran reported, and an examiner noted, that he had a previously worn knee braces and previously had a bruised knee injury. An August 2020 VA examiner concluded, after reviewing the Veteran's extensive medical record, that the Veteran clearly [and unmistakably] had a left knee injury that existed prior to service. A Veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease (1) existed prior thereto and (2) was not aggravated by such service. 38 U.S.C. § 1111, 1132; 38 C.F.R. § 3.304(b). The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, when the presumption of soundness applies, the Veteran is not required to show that a pre-existing injury or disease increased in severity during service. Id. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. Id. The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Although the record suggests his left knee condition likely pre-existed the Veteran's active service, the evidence fails to establish the condition was clearly and unmistakably not aggravated during active service. In fact, the August 2021 VA examiner explicitly opined that the Veteran's left knee condition was aggravated beyond its natural progression due to the physical demands of military service. Indeed, the Board notes in September 2020, another examiner negatively opined regarding aggravation. Specifically, the examiner noted that there is no documentation in the Veteran's available medical records of any temporary or intermittent flare-ups of his pre-existing left knee condition during his military service that worsened, aggravated, or altered the natural progression of his condition. Therefore, it is less likely than not that the Veteran's pre-existing left knee condition was aggravated beyond its natural progression during service. The Board, however, finds this opinion to be inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a negative opinion based solely on the lack of evidence in service treatment records is inadequate). As such, the Board finds VA is unable to meet the necessary burden to rebut the presumption of soundness because it cannot conclude that it is "undebatable" that there was no aggravation in service. Therefore, the presumption of soundness has not been rebutted in the Veteran's case. See Wagner, 370 F.3d at 1096. Since the record clearly establishes that the Veteran has continued to have a left knee condition, and symptoms thereof, the Board finds service connection for the disability is warranted. Increased Rating for Left Lower Extremity Radiculopathy Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left lower extremity radiculopathy has been rated under Diagnostic Code 8520 (neuritis of the sciatic nerve). Mild incomplete paralysis warrants a 10 percent rating. Moderate incomplete paralysis warrants a 20 percent rating. Moderately severe incomplete paralysis warrants a 40 percent rating. Severe incomplete paralysis with marked muscle atrophy warrants a 60 percent rating. Complete sciatic nerve paralysis warrants the assignment of an 80 percent rating and contemplates 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, Diagnostic Code 8620. 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. It also should be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Court in Chavis v. McDonough, held that benchmarks established by VA must be discussed in addressing the subjective terms of these regulations. See Chavis v. McDonough, 34 Vet. App. 1 (2021). The term "incomplete paralysis," with respect to radiculopathy, indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a. In excess of 10 percent prior to February 12, 2020 An April 2007 private medical assessment indicated the Veteran had low back pain with radiation down the left leg to the level of the ankle. MRI showed disk protrusion contracting the nerve root. A May 2007 private operative report indicated lumbar radiculopathy. The Veteran also underwent surgical intervention. A July 2008 VA examination showed the Veteran's reports of numbness and tingling, as well as weakness and fatigue in his left leg. The Veteran had mild to moderate chronic L5-S1 lumbar radiculopathy on the left side, per EMG nerve conduction velocity studies performed in May 2007. His motor strength testing was normal; however, his fine touch sensation was decreased. A December 2008 rating decision granted service connection and an initial 10 percent rating for lumbar radiculopathy on the left side effective December 1, 2007, based on mild incomplete paralysis below the knee. A January 2009 VA examination showed bilateral upper and lower extremity muscle strength was intact at 5/5. Straight leg raise testing was normal, bilaterally. An April 2011 VA examination for the Veteran's lumbar spine noted that he had sensation to monofilament in both feet, 1/4 deep tendon reflexes, 5/5 muscle strength in all muscle groups, and no tenderness to palpation in the joint areas, and no muscle wasting, or atrophy was identified on examination. A January 2016 VA examiner found that the Veteran had mild, incomplete paralysis of the left sciatic nerve. At such time, the Veteran had complaints of pain in the arms that began in May 2007, after his back surgery; however, the examiner found no evidence of any upper peripheral nerve condition. The examiner noted that the Veteran's left lower extremity had moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Muscle strength testing was normal. The examiner noted that the Veteran's radiculopathy pain causes him to move slowly and only allows him to stand for about 10 minutes during flare-ups. A June 2019 VA treatment examination indicated normal muscle strength testing in the lower limbs. The Veteran was able to walk on his toes, walk on his heels, and hop on each foot. An October 2019 VA treatment note indicated the Veteran did not have lower extremity weakness however, he continued to have numbness and tingling. A December 2019 VA treatment note indicated the Veteran did not have lower extremity weakness. Given the above, the Board finds that an initial rating in excess of 10 percent prior to February 12, 2020, is not warranted for the Veteran's left lower extremity radiculopathy as the objective medical examinations during this period refect predominantly mild symptoms. Importantly, the January 2016 VA examination showed moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Additionally, various VA treatment records note the Veteran's numbness and tingling symptoms and indicate the Veteran did not have any lower extremity weakness. Therefore, the level of impairment for the Veteran's left lower extremity radiculopathy (sciatic nerve) has been shown to be less than a level of impairment contemplated by a 20 percent disability rating. In essence, the objective medical evidence only shows "symptoms sufficient to support the diagnosis" and not symptoms "considered significantly disabling medically, and/or involving a larger area in nerve distribution," as is required for the next higher rating. Chavis, supra. As such, entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy (sciatic nerve) prior to February 12, 2020, is denied. In excess of 20 percent from February 12, 2020, and thereafter The Veteran was afforded VA examination in February 2020. The examiner noted the Veteran's left lower extremity had moderate constant pain, no intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Muscle strength testing was abnormal for the left knee extension, ankle plantar flexion, and ankle dorsiflexion. No muscle atrophy was present. There was decreased sensory in the left thigh/knee, lower leg/ankle, and foot/toes. The examiner indicated moderate incomplete paralysis of the sciatic nerve. In March 2020, VA treatment records showed continued numbness and tingling, but no weakness of the lower extremity. Given the above, the Board finds that a rating in excess of 20 percent from February 12, 2020, and thereafter, is not warranted for the Veteran's left lower extremity radiculopathy as the objective medical examinations during this period refect predominantly moderate symptoms. Importantly, the February 2020 VA examination showed moderate constant pain, no intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Additionally, various VA treatment records note the Veteran's numbness and tingling symptoms and indicate he did not have any lower extremity weakness. Therefore, the level of impairment for the Veteran's left lower extremity radiculopathy (sciatic nerve) has been shown to be less than a level of impairment contemplated by a 40 percent disability rating. As such, entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy (sciatic nerve) from February 12, 2020, and thereafter, is denied. REASONS FOR REMAND Entitlement to service connection for a cervical spine disorder Entitlement to service connection for bilateral ulnar neuropathy In February 2020, the Veteran underwent VA examinations for his cervical spine condition and his bilateral ulnar neuropathy. At both examinations, the examiner found that such conditions pre-existed active service and opined negatively as to direct service connection and secondary service-connection to the Veteran's lower back condition. As previously stated, the presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Indeed, while the February 2020 VA examiner found that the Veteran's cervical spine condition and bilateral ulnar neuropathy condition pre-existed service, the examiner did not, however, address the appropriate legal standard of whether clear and unmistakable evidence shows that the disability pre-existed service and was not aggravated by service. Thus, as VA regulations pertaining to the rebuttal of the presumption of soundness require the highly stringent standard of clear and unmistakable evidence that the Veteran's disease or injury existed prior to service and clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service, the Board finds that an adequate examination and addendum opinion is necessary. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Entitlement to an initial rating in excess of 10 percent prior to November 13, 2012, in excess of 20 percent from November 13, 2012, to January 13, 2016, in excess of 10 percent from January 14, 2016, to February 11, 2020, and in excess of 20 percent from February 12, 2020, and thereafter, for the service-connected lumbosacral degenerative disc disease with disc protrusions, status post microdiscectomy and hemilaminectomy Throughout the entire appeal, VA treatment records have repeatedly documented the use of medication for the Veteran's lower back pain. See November 2010 VA treatment note indicated that the Veteran received lumbar epidural steroid injections; December 2019 VA treatment note indicating that his Provant prescription helps his low back pain, and that he continues to use Oxycodone; and, February 2020 VA examination indicating medications include Flexeril, Naproxen, Oxycodone, and Nalexetrone. To date, no VA examiner has provided an estimate as to what range of motion or other functional loss would be absent the ameliorative effects of his medication. See, Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that "the Board must obtain medical information as to what [the Veteran's] lost range of motion and other functional loss would be absent the ameliorative effects of medication.... [to include] a retrospective medical opinion for the earlier part of the appeal."). As such, a remand for a VA examination opinion to assess the current nature, extent, and severity of his lumbosacral spine disability is required. See, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the February 2020 VA examiner, if available, addressing the nature and etiology of the Veteran's cervical spine condition and bilateral ulnar neuropathy condition. The entire claims file must be made available to and reviewed by the examiner. No additional examination is necessary unless the examiner determines otherwise. If the examiner indicates that he/she is unable to render an opinion without a concurrent examination, an examination must be scheduled. The examiner should provide an opinion, with supporting rationale, as to: (a.) Whether the Veteran's cervical spine condition clearly and unmistakably preexisted service, and if so, whether it was clearly and unmistakably not aggravated by service. (b.) If the examiner finds that the cervical spine condition did NOT clearly and unmistakably preexist service, or were clearly and unmistakably NOT aggravated by service, the examiner must opine whether the disability at least as likely as not had onset during active duty. (c.) Whether the Veteran's bilateral ulnar radiculopathy clearly and unmistakably preexisted service, and if so, whether it was clearly and unmistakably not aggravated by service. (d.) If the examiner finds that the bilateral ulnar radiculopathy did NOT clearly and unmistakably preexist service, or were clearly and unmistakably NOT aggravated by service, the examiner must opine whether the disability at least as likely as not had onset during active duty. 2. Additionally, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbosacral condition. The examiner should provide full descriptions of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should specifically consider whether the Veteran's treatments have any ameliorating effects on the symptoms or presentation. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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). In so doing, 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). SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.