Citation Nr: 22018932 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 20-08 902 DATE: March 30, 2022 ORDER Entitlement to an initial disability rating of a 20 percent disability rating from June 28, 2017 to May 17, 2021, for right lower extremity radiculopathy, femoral nerve is granted. Entitlement to a disability rating in excess of 10 percent from May 17, 2021, for right lower extremity radiculopathy, femoral nerve is denied. REMANDED Entitlement to service connection for a disability manifesting in instability and swelling of the left ankle is remanded. Entitlement to service connection for a disability manifesting in instability and swelling of the right ankle is remanded. Entitlement to service connection for bilateral shin splints is remanded. Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the spine is remanded. Entitlement to a disability rating in excess of 20 percent prior to May 17, 2021 for degenerative arthritis of the spine is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran's radiculopathy, femoral nerve, right lower extremity while wholly sensory manifested as moderate in degree from June 28, 2017 to May 17, 2021. 2. From May 17, 2021, the disorder is no worse than mild in degree. 3. There is no objective evidence of a diagnosis of radiculopathy, femoral nerve, right lower extremity, as there are no objective sensory or motor deficits. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of a 20 percent disability rating from June 28, 2017 to May 17, 2021, for right lower extremity radiculopathy, femoral nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.124a, Diagnostic Code 8526. 2. The criteria for entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy, femoral nerve from May 17, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1959 to August 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran presented testimony at a virtual hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In March 2021, the Board remanded this matter for further development. The Board finds that there was not substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. 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 a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy, femoral nerve The Veteran seeks a higher initial disability rating for his lower extremity radiculopathy, femoral nerve disability. The applicable rating period is from June 28, 2017, the effective date for the award of service connection for that disability, through the present. See 38 C.F.R. § 3.400. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 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. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. 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," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran's right lower extremity radiculopathy, femoral nerve disability is currently rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 8526. Under Diagnostic Code 8526, a 20 percent rating is assigned for moderate incomplete paralysis of the femoral nerve. A 30 percent rating is assigned for severe incomplete paralysis of the femoral nerve. A 40 percent rating is assigned for complete paralysis of the femoral nerve, where the quadriceps extensor muscles are completely paralyzed. 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 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 required 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). In May 2018, the Veteran was afforded a VA examination for his back disability which included an evaluation of the Veteran's right lower extremity radiculopathy, femoral nerve disability. The examiner noted that the Veteran has moderate intermittent pain (usually dull); moderate paresthesias and/or dysesthesias; and moderate numbness in his right lower extremity. The examiner noted that the Veteran's symptoms are wholly sensory and are moderate. In January 2021, the Veteran testified at a Board hearing. He testified that he experiences pain down both legs, and it is from the waist down and all the way across the back. In May 2021, the Veteran was afforded a VA examination for his back disability and right lower extremity radiculopathy, femoral nerve disability. The examiner indicated that the Veteran did not have any radicular pain or any other signs or symptoms of radiculopathy. The examiner noted that, the May 2018 L-spine x-ray established a diagnosis of radiculopathy, femoral nerve, right lower extremity but the diagnosis has changed as there is no objective sensory or motor deficits noted on the May 2021 neurological exam; nor is there any EMG/NCV study to support a diagnosis of radiculopathy found in the Veteran's medical records to review. The examiner stated that there was no objective sensory or motor deficits noted on the May 2021 neurological exam; nor is there any EMG/NCV study to support a diagnosis of radiculopathy found within the Veteran's medical records. The Board has considered the Veteran's lay statements as well as the May 2018 and May 2021 VA examinations and finds that resolving reasonable doubt in the Veteran's favor his right lower extremity radiculopathy, femoral nerve disability manifested as a moderate degree from June 28, 2017, to May 17, 2021. However, the Board finds that as of the May 17, 2021 VA examination, a disability rating in excess of 10 percent for the Veteran's right lower extremity radiculopathy, femoral nerve disability is not warranted. The Board finds that as the May 2021 VA examiner found that the Veteran did not have right lower extremity radiculopathy of the femoral nerve, and thus, the Veteran's symptoms could not manifest as either wholly moderate or moderate incomplete paralysis of the femoral nerve. In summary, resolving reasonable doubt in the Veteran's favor the Board finds that a 20 percent disability rating is warranted from June 28, 2017 to May 17, 2021 for right lower extremity radiculopathy, femoral nerve. The Board also finds that a disability rating in excess of 10 percent is not warranted from May 17, 2021, for right lower extremity radiculopathy, femoral nerve. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the evidence is not in approximate balance or nearly equal in the veteran's favor, the claim must be denied. Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021). In this case, the Board does not find that there is an approximate balance of positive and negative evidence, as the Board does not find that from May 17, 2021, the Veteran's right lower extremity radiculopathy, femoral nerve disability manifests as wholly moderate or moderate incomplete paralysis of the femoral nerve, and thus a disability rating in excess of 10 percent is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a disability manifesting in instability and swelling of the left ankle 2. Entitlement to service connection for a disability manifesting in instability and swelling of the right ankle 3. Entitlement to service connection for bilateral shin splints The Veteran asserts that he is entitled to service connection for a bilateral ankle disability and bilateral shin splints either as directly related to injuries sustained while playing basketball in service, or as secondary to his service-connected disabilities. Ankles The Veteran was provided with a VA examination concerning his ankle claims in September 2020. The Veteran reported that "the region aches and stays swollen status-post clots, and that it is also tight and has swelling with pain, for which he uses a compression stocking." On physical examination, it was noted that he had bilateral pitting edema, worse on the right, and five degrees of limited plantar flexion on the right. The examination report indicated that the Veteran does not have a current diagnosis associated with the ankles, and the examiner stated that the current symptoms are consistent with age and vascular insufficiency. The examiner concluded that the "pitting edema [was] stated as from history of DVTs (blood clots)" and therefore it was less likely than not that an ankle disability was due to or the result of the Veteran's service-connected disabilities. The Board did not find this medical opinion to be adequate. In March 2021, the Board remanded this claim to acquire an adequate medical opinion. In May 2021 and February 2022, VA secured addendum medical opinion(s). However, the examiner did not follow the directives, and ignored the Boards instructions to consider the Veteran's left and/or right ankle symptoms, described as swelling/pitted edema and instability as a "disability," in order to provide medical opinions as to whether these disabilities were related to the Veteran's active service or were caused or aggravated by the Veteran's service-connected disabilities. The examiner ended her analysis at "no diagnosis." Thus, a remand is necessary to secure adequate medical opinions. Shins The Veteran was provided with VA examinations concerning his bilateral shin splints claim in July 2018 and September 2020. The July 2018 examiner indicated that the Veteran had bilateral shin splints that affected the range of motion of the knees. The July 2018 examiner opined that it is less likely as not that the current bilateral shin splint is secondary to, incurred in, or caused by the Veteran's "leg length discrepancy; left leg, scoliosis condition." The rationale was that there is no pathophysiologic relationship between the bilateral shin splint condition and the service-connected condition, nor are there any records showing such a relationship exists. The September 2020 examiner stated that the Veteran did not have any current symptoms of shin splints but acknowledged that it was noted at the 2018 examination. The examiner stated an opinion that because the Veteran did not currently have shin splints, it is less likely as not that shin splints were aggravated beyond their natural progression by service-connected diagnoses, including of the knees. The opinion did not address whether the shin splints noted at the July 2018 examination were caused or aggravated by service-connected disability or whether such are otherwise related to service. The examiner did not address the Veteran's lay testimony that his shin, ankles, knees and back are all related, and that he has pain in his legs and ankles. In March 2021, the Board remanded this claim to acquire an adequate medical opinion. In August 2021 and February 2022, VA secured addendum medical opinion(s). However, the examiner again ended the analysis at "no disability." The examiner must discuss the Veteran's symptoms of leg pain and determine if the Veteran's leg pain is either related to active military service or is caused or aggravated by the Veteran's service-connected disabilities. The Veteran has consistently contended that his knee and back disabilities impact his shins and ankles. The Board cannot make a fully informed decision on the issue of entitlement to the Veteran's ankle or shin disabilities without determining if the Veteran's current symptoms, if not diagnoses are related to active military service or caused or aggravated by the Veteran's service-connected disabilities. Thus, a remand is necessary prior to adjudicating the Veteran's claims for service connection. 4. Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the spine from June 28, 2017, to May 17, 2021 5. Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the spine since May 17, 2021 The Veteran seeks a higher disability rating for his back disability. The Veteran testified at a Board hearing in January 2021 that his back disability inhibits him from doing "certain things." In May 2021, the Veteran was afforded a VA examination for his back. The examiner noted that the Veteran was diagnosed with degenerative arthritis. The Veteran reported flare-ups and the symptoms manifested as having back aches if he lifts more than 5-10 pounds. The back aches are mild to moderate, and they last until the Veteran stops performing the activity that started them. The back aches are alleviated by rest. The Veteran did not report any additional symptoms of functional loss including but not limited to after repeated used over time. Upon examination, the Veteran had a forward flexion to 55 degrees, with a combined range of motion of the thoracolumbar spine of 155 degrees. The examiner indicated that the pain was exhibited during active motion, but not during weightbearing, non-weightbearing, or passive motion testing. The Veteran did not have any additional loss or range of motion during passive testing or repetitive use testing. The examiner did not provide estimates of any functional loss during repeated use over time or during flare-ups. The examiner noted that the statements from the Veteran do not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits the Veteran's functional ability. However, the examiner did not explain how the Veteran's statements of suffering from back aches when he lifts more than 5-10 pounds and must rest due to pain, is not considered functional loss. The Board cannot make a fully informed decision on the issue of entitlement to an increased disability rating for the Veteran's degenerative arthritis of the spine without first securing an addendum medical opinion that estimates the Veteran's functional loss during repeated use over time testing, and during flare-ups. The matter is REMANDED for the following action: 1. Obtain an addendum opinion for the Veteran's bilateral ankles from an appropriate medical professional who has the requisite experience to render the requested medical opinions. Provide the examiner with the Veteran's complete record, to include a copy of all remands, and the claims folder. No examination of the Veteran is necessary unless the examiner deems otherwise. 2. The examiner must note and address the following in the opinions in #3 below: i. Based on the Veteran's symptoms including but not limited to "the region aches and stays swollen status-post clots, and that it is also tight and has swelling with pain, for which the Veteran uses a compression stocking." (Consider the symptoms as a disability). ii. The Veteran's lay testimony that his shin, ankles, knees and back are all related, and that he has pain in his legs and ankles. 3. The examiner is asked to provide the following medical opinions. (a.) Is it at least as likely as not that the disability arose during or is otherwise related to service, including but not limited to the Veteran's described wear and tear from playing basketball and/or the two right ankle sprains noted in the Veteran's July 1961 service treatment records? (b.) Is it at least as likely as not that the disability is proximately caused by one or more of the Veteran's service-connected disorders? (c.) Is it at least as likely as not that the disability is aggravated beyond its natural progression by one of more of the Veteran's service-connected disorders? (d.) Explain the nature and etiology of the Veteran's bilateral ankle symptoms. 4. Obtain an addendum opinion for the Veteran's bilateral shins from an appropriate medical professional who has the requisite experience to render the requested medical opinions. Provide the examiner with the Veteran's complete record, to include a copy of all remands, and the claims folder. No examination of the Veteran is necessary unless the examiner deems otherwise. 5. The examiner must note and address the following in the opinions in #6 below: (a.) Based on the Veteran's symptoms including but not limited to leg pain. (Consider the symptoms as a disability). (b.) The Veteran's lay testimony that his shin, ankles, knees and back are all related, and that he has pain in his legs and ankles. 6. The examiner is asked to address the following: i. Is it at least as likely as not that the disability arose during or is otherwise related to service, including but not limited to the Veteran's described wear and tear from playing basketball and/or the two right ankle sprains noted in the Veteran's July 1961 service treatment records? ii. Is it at least as likely as not that the disability is proximately caused by one or more of the Veteran's service-connected disorders? iii. Is it at least as likely as not that the disability is aggravated beyond its natural progression by one of more of the Veteran's service-connected disorders? iv. Explain the nature and etiology of the Veteran's bilateral shin symptoms. 7. Obtain an addendum opinion for the Veteran's back disability from an appropriate medical professional who has the requisite experience to render the requested medical opinions. Provide the examiner with the Veteran's complete record, to include a copy of all remands, and the claims folder. No examination of the Veteran is necessary unless the examiner deems otherwise. (a.) The examiner should provide an opinion as to whether there would be additional functional impairment on repeated use over time or during flare-ups based upon the Veteran's May 2021 VA examination and treatment records. The examiner should estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran's description of his flares' severity, frequency, duration, and/or functional loss manifestations, and should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, if possible. (b.) If it is not feasible to determine the extent to which the Veteran experienced additional functional loss on repeated use over time or during flare-ups based upon the Veteran's May 2021 VA examination and treatment records without resorting to speculation, the examiner must provide a complete explanation for why this is the case. (The examiner may schedule the Veteran for an examination if necessary). 8. The AOJ must review this opinion to ensure it is adequate and complies with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 9. Then, the Veteran's claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.