Citation Nr: 22019146 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 16-26 410 DATE: March 31, 2022 ORDER Entitlement to a 40 percent evaluation, but no higher, for service-connected radiculopathy of the left sciatic nerve from August 11, 2011, is granted, subject to the applicable regulations concerning the payment of monetary benefits. Entitlement to a 40 percent evaluation, but no higher, for service-connected radiculopathy of the right sciatic nerve from August 11, 2011, is granted, subject to the applicable regulations concerning the payment of monetary benefits. REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for left carpal tunnel syndrome is remanded. Entitlement to an initial evaluation in excess of 10 percent for service-connected hypertension is remanded. FINDINGS OF FACT 1. The most probative evidence reflects that, from August 11, 2011, to the present, the manifestations of the Veteran's service-connected radiculopathy of the left sciatic nerve were not wholly sensory and most closely approximated "moderately severe" incomplete paralysis of the nerve, but without marked muscular atrophy. 2. The most probative evidence reflects that, from August 11, 2011, to the present, the manifestations of the Veteran's service-connected radiculopathy of the right sciatic nerve were not wholly sensory and most closely approximated "moderately severe" incomplete paralysis of the nerve, but without marked muscular atrophy. CONCLUSIONS OF LAW 1. The criteria for a 40 percent initial evaluation, but no higher, for the Veteran's service-connected radiculopathy of the left sciatic nerve are met from August 11, 2011, to the present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 2. The criteria for a 40 percent initial evaluation, but no higher, for the Veteran's service-connected radiculopathy of the right sciatic nerve are met from August 11, 2011, to the present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1976 to August 1993 and from July 2007 to June 2008. He also had additional service of an unverified nature in the Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (ROs) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with these determinations, and the present appeal ensued. Some of the issues on appeal, among others, were previously before the Board in July 2015, March 2019, when it was determined that remand was to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. Pertinently, in rating decisions issued in December 2015 and December 2018, the AOJ partially granted the Veteran's appeals seeking separate and increased initial evaluations for his service-connected radiculopathy of the left and right extremities, respectively. These actions resulted in the creation of "staged" initial evaluations for these disabilities and represent partial allowances of the benefits sought. As such, these matters remain in appellate status and have been recharacterized to reflect the AOJ's actions. AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021). In January 2021, the Board, among other determinations, remanded the Veteran's appealed issues seeking an effective date prior to June 21, 2018, for the assignment of a 20 percent initial evaluation for service-connected radiculopathy of the right leg and to establish service connection for a heart disability and left carpal tunnel syndrome for additional development. The Board also denied the Veteran's appealed issues seeking an initial evaluation in excess of 10 percent for service-connected hypertension and in excess of 20 percent for service-connected radiculopathy of the left lower extremity from August 11, 2011, to the present. The Veteran appealed the Board's January 2021 denials of the two issues noted above to the United States Court of Appeals for Veteran's Claims (Court), which, in a December 2021 Order, endorsed a December 2021 Joint Motion for Partial Remand (JMPR) by the parties, vacating the Board's January 2021 decision regarding these two issues. The Veteran's appealed issues have been returned to the Board by the Court and the AOJ, have been merged, and are ripe for further appellate consideration. 1. Entitlement to an initial evaluation in excess of 20 percent for service-connected radiculopathy of the left sciatic nerve from August 11, 2011, to the present 2. Entitlement to an increased initial evaluation for service-connected radiculopathy of the right sciatic nerve, currently evaluated 10 percent disabling prior to June 21, 2018, and 20 percent disabling, thereafter Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Under Diagnostic Code 8520, complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the nerve warrants a 60 percent evaluation if it is severe with marked muscular atrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the typical 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Court recently held in Miller v. Shulkin, 28 Vet. App. 376 (2017), that the language of 38 C.F.R. § 4.124a provides for a maximum 20 percent rating for peripheral neuropathy when the involvement is wholly sensory. Pursuant to 38 C.F.R. § 4.123, however, the maximum rating that may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis, i.e., no more than 40 percent. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id. at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." Analysis As analysis of these appealed issues entails application of similar diagnostic criteria to congruent facts, the Board will discuss them together for the sake of economy. Initially, the Board observes that these appealed issues stem from the AOJ's allowances for separate initial evaluations for neurological impairments associated with the Veteran's service-connected low back disability, as per the diagnostic criteria pertinent to the thoracolumbar spine. While the Veteran appealed the initial evaluation assigned for the left sciatic nerve rating only, both remain properly before the Board, albeit via differing procedural actions. As noted in the Introduction, the appeal for the left sciatic nerve has been returned to the Board by virtue of the Court-endorsed JMPR, and such is limited to the period from August 11, 2011, to the present because the Veteran did not appeal the portion of the Board's January 2021 decision which denied entitlement to an increased initial evaluation prior to that date. Regarding the appeal involving the evaluation of the service-connected right sciatic nerve disability, the Board stated in January 2021 that such remained in appellate status in light of the AOJ's receipt of pertinent new and material evidence within the appeal period of the October 2015 rating decision. While the Board characterized this issue as one seeking an earlier effective date for the assignment of a 20 percent initial rating (based on the AOJ's partial allowance in a December 2018 rating decision), the more appropriate characterization is seeking an increased initial evaluation throughout the entirety of the appeal period. This issue has been recharacterized to most accurately reflect the benefits available to and sought by the Veteran. Tyrues v. Shinseki 23 Vet. App. 166, 178-79 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012). The Veteran and his private attorney assert that the manifestations of his service-connected radiculopathy of the bilateral sciatic nerves, are more significant than reflected by the currently assigned staged initial evaluations. For the reasons discussed below, the Board concludes that the most probative evidence of record bolsters this contention, resulting in a partial allowance of the benefits sought regarding each appealed issue. The report of an August 2011 VA spine examination reflects that the Veteran reported symptoms of neurological disabilities affecting both sciatic nerves; however, only radiculopathy of the right sciatic nerve was diagnosed. At the time, it was noted that the Veteran did not demonstrate or report an antalgic gait secondary to this disability or any other. Notwithstanding the above, as agreed by the parties in the December 2021 Court-endorsed JMPR, all VA spine and neurological examinations post-dating the August 2011 VA examination retrospectively reflect that the Veteran's service-connected low back disability was manifested by impairment of both sciatic nerves, initially diagnosed in 2011, and resulting in an antalgic gait necessitating the use of a case. In sum, the parties' agreement in the January 2021 Court-endorsed JMPR result in a finding that the manifestations of the Veteran's service-connected radiculopathy of the bilateral sciatic nerves were beyond "wholly sensory" from August 11, 2011, to the present. Miller v. Shulkin, 28 Vet. App. 376 (2017). Armed with the above and in observation of the "law of the case" doctrine, the Board concludes that this evidence most closely approximates "moderately severe" incomplete paralysis of the paired (bilateral) sciatic nerves from August 11, 2011, to the present. As such, the criteria for separate 40 percent initial evaluations for radiculopathy of the left and right sciatic nerves are met during that period. The above represents a partial allowance of both of the Veteran's appealed issues. While higher initial evaluations are available via VA's Rating Schedule, the manifestations of these disabilities do not meet or closely approximate the criteria for such. Specifically, the record does not reflect, and the Veteran and his private attorney do not contend, that either of these disabilities is manifested by marked muscular atrophy resulting from service-connected radiculopathy of the sciatic nerves. As such, initial evaluations in excess of 40 percent for the Veteran's service-connected radiculopathy of the sciatic nerves are not warranted. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. Finally, the Board observes that a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) has been granted from the date of the Veteran's most recent employment, and neither the Veteran, his private attorney, nor the record has raised any other issues, to include alleged deficiencies in VA's duties to notify and assist. Accordingly, application of the Court's holding in Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009) and referral for extraschedular rating considerations are not warranted. Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). REASONS FOR REMAND 1. Entitlement to service connection for a heart disability is remanded. 2. Entitlement to service connection for left carpal tunnel syndrome is remanded. As outlined in the Board's January 2021 remand, medical opinions were sought to determine the etiology of the Veteran's heart disability and left carpal tunnel syndrome. Such opinions were obtained by the OAJ in April 2021 and June 2021; however, the Board concludes that these opinions are inadequate for the purpose of readjudicating the Veteran's appealed issues. Specifically, the rationales accompanying both unfavorable opinions were based on a lack of contemporary medical evidence corroborating the Veteran's complaints of experiencing symptoms of these disabilities during and since service. As the Federal Circuit has held that such opinions are inadequate for the purpose of readjudication, another remand is necessary. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, after the Board's January 2021 remand, the Veteran provided a completed release for private treatment records from his cardiologist (Dr. W at Meadville Medical Center). The file reflects that the AOJ made attempts to obtain these records; however, the private provider required a fee for the production of such records. A subsequent letter informed the Veteran and his private attorney that the private treatment records from Meadville Medical Center had been sought; however, it was ultimately his responsibility to ensure that such were associated with his VA file. While the Veteran did not reply to this notice letter, the Board observes that this notice letter did not inform the Veteran of the private provider's fee requirement for these records. Perhaps the Veteran and/or his private attorney would have undertaken the necessary actions to obtain these records had they been notified of this impediment. In sum, the file reflects that there are reasonably identified private treatment records pertinent to the Veteran's appealed issues regarding his heart disability and hypertension, and VA has not satisfied its duty to assist the Veteran regarding obtaining such. Accordingly, another remand is necessary. 3. Entitlement to an initial evaluation in excess of 10 percent for service-connected hypertension is remanded. As detailed above, this issue must be remanded to ensure completeness of the record for review. Moreover, the Court of Appeals for Veterans Claims (Court) recently held in Wilson v. McDonough, No. 19-6020, 2021 U.S. App. Vet. Claims LEXIS 2208 *7-8 (Vet. App. Dec. 20, 2021) that the plain language of Diagnostic Code 7101 requires consideration of blood pressure readings prior to when such was controlled with medication, regardless of whether such were taken during the period on appeal. Pursuant to Wilson, historical blood pressure readings before the Veteran began taking continuous hypertension medication should be considered. The evidence of record appears to reflect that the Veteran was initially prescribed prescription medication for hypertension in 2007 during active duty. Without discussing the propriety of rating a service-connected disability based on in-service symptoms, the Board concludes that remand is necessary for retrospective findings regarding the Veteran's blood pressure readings in light of the holding in Wilson. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA and private treatment, with the Veteran's assistance regarding the latter. *In completing the above, the AOJ must provide the Veteran with an appropriate release and request that he complete such for all records of private treatment from Dr. W. at Meadville Medical Center and inform him of the provider's fee requirement for such records. 2. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the nature and etiology of his heart disabilities and left carpal tunnel syndrome and to evaluate his service-connected hypertension. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. Thereafter, the VA examiner must address the following: a. Provide an opinion concerning whether any heart disability identified during the appeal period is at least as likely as not proximately due to, or the result of, an incident of his service. b. Provide an opinion concerning whether left carpal tunnel syndrome is at least as likely as not proximately due to, or the result of, an incident of his service. *In addressing the above, the Veteran's reports of experiencing symptoms congruent with these disabilities during and since service have been found to be competent and credible. The requested opinions must consider these reports as such. *Regarding the Veteran's left carpal tunnel syndrome, the examiner is specifically asked to discuss the possibility of the development of left carpal tunnel syndrome secondary to the Veteran's handling of (not wearing of) a 45-pound respiratory apparatus, to include repetitive donning and doffing such. c. Provide contemporaneous findings concerning all manifestations of the Veteran's hypertension, to include blood pressure readings conforming with 38 C.F.R. § 4.104, Diagnostic Code 7101. d. State when the Veteran initially was initially prescribed continuous medication for hypertension (month and year). e. Provide an opinion, citing evidence from the file, whether the Veteran had "a history" of diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more prior to the Veteran taking continuous medication for his hypertension. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his private attorney with a copy of the readjudication and afford them an appropriate period to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.