Citation Nr: 22028811 Decision Date: 05/16/22 Archive Date: 05/16/22 DOCKET NO. 17-08 744 DATE: May 16, 2022 ORDER An initial disability rating of 20 percent, but no higher, for radiculopathy of the right lower extremity is granted. REMANDED Entitlement to service connection for a heart disorder, to include coronary artery disease (CAD), is remanded. Entitlement to service connection for right knee disorder is remanded. Entitlement to service connection for left knee disorder is remanded. Entitlement to an initial disability rating in excess of 10 percent for a back disability is remanded. FINDING OF FACT The Veteran's radiculopathy of the right lower extremity manifested to symptoms of moderate incomplete paralysis with no marked muscular atrophy or complete paralysis. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 20 percent, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.124a, Diagnostic Code (DC) 8520, 8721. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1972 to August 1974. These issues come before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in October 2021, at which time it was remanded for further development. The Board notes that its remand included the issue of entitlement to service connection for erectile dysfunction, which was subsequently granted in a December 2021 rating decision. As this represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Increased Ratings VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally 38 C.F.R. Part IV. The Board determines the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability assessment more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating of 20 percent, but no higher, for radiculopathy of the right lower extremity The Veteran generally contends that an increased disability evaluation is warranted for his service-connected radiculopathy of the right lower extremity. The disability is rated under 38 C.F.R. § 4.124a, DC 8720, neuralgia of the sciatic nerve. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520 (Neuritis and neuralgia of that group are evaluated under DC 8620 and DC 8720). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. 38 C.F.R. § 4.124a, DC 8520. Moderate incomplete paralysis is rated as 20 percent disabling. Id. Moderately severe incomplete paralysis is rated as 40 percent disabling. Id. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Id. 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. Id. The terms "mild," "moderate" and "severe" are not defined in the rating criteria. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as "mild" or "severe" by VA examiners and others, 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. In rating peripheral nerve injuries and their residuals, attention must be given to the site and character of the injury, the relative impairment of motor function, trophic changes, and/or sensory disturbances. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123-24. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be mild, or at most, the moderate degree. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. In the present case, the Veteran underwent a VA lumbar spine examination in December 2012. The VA examiner provided the diagnosis of thoracic degenerative disc disease, lumbar strain, and IVDS. The Veteran reported back pain and muscle cramps. He exhibited normal flexion and extension of the lower extremities, with full muscle strength. The examination noted normal findings of the Veteran's reflexes, however reported decreased sensation to touch during sensory examination of the Veteran's right lower leg and foot. The examination noted negative findings for the Veteran's straight leg raising test. The VA examination reported the Veteran exhibited radicular symptoms in his right leg, including mild intermittent pain, paresthesias, dysesthesias, and numbness. The VA examiner noted the Veteran's radicular symptoms involved the right sciatic nerve group. The VA examiner noted no other neurologic abnormalities of symptoms of radiculopathy. The Veteran underwent a VA lumbar spine examination in August 2016. The VA examiner confirmed the Veteran's diagnoses of thoracic degenerative disc disease, lumbar strain, and IVDS. The Veteran reported radiating pain up and down the spine. The Veteran exhibited normal flexion and extension of the upper extremities, with full muscle strength. The examination noted normal findings on the reflex and sensory examinations of the lower extremities. The examination noted a positive finding for the Veteran's right straight leg raising test. The VA examination reported the Veteran exhibited radicular symptoms in his right leg, including moderate constant and intermittent pain, and mild paresthesias and dysesthesias, and numbness. The VA examiner noted the Veteran's radicular symptoms involved the right sciatic nerve group. The VA examiner noted no other neurologic abnormalities of symptoms of radiculopathy. As a whole the VA examiner concluded the severity of the Veteran's radiculopathy of the right leg was mild. Pursuant to the October 2021 Board remand, the RO provided the Veteran a VA examination in December 2021 to address the severity of the Veteran's back disability. The VA examiner reported the Veteran's back disabilities included a diagnosis of radiculopathy of the right lower extremity. The Veteran reported a history of symptoms including low back spasms, right leg numbness and tingling, and trouble bending. On examination, the Veteran exhibited active movement against some resistance upon flexion and extension of the left and right hip. The VA examiner noted the Veteran's bilateral hip weakness was related to his spinal condition. The VA examiner noted the Veteran underwent a left hip replacement in August 2021. The Veteran reported he was told he needed a right hip replacement too. All other findings were recorded as normal flexion and extension of the lower extremities with full muscle strength. The examination noted normal findings on the reflex examinations of the lower extremities. The examination noted decreased sensation to light touch for the Veteran's right lower leg and foot. The examination noted negative findings for the Veteran's straight leg raising test. The VA examination reported the Veteran exhibited radicular symptoms in his right leg, including mild numbness, paresthesias, and dysesthesias. The VA examiner noted the Veteran's radicular symptoms involved the right sciatic nerve group. The VA examiner noted no other neurologic abnormalities of symptoms of radiculopathy. As a whole the VA examiner concluded the severity of the Veteran's radiculopathy of the right leg was mild. The VA examiner reported the Veteran's right leg radiculopathy presented a fall risk. The VA examiner noted the Veteran should avoid occupational tasks including stairs and ladders. The Board finds that a rating of 20 percent, but no higher for the Veteran's right leg radiculopathy is warranted, as the evidence of record demonstrates that his symptoms most nearly approximate moderate incomplete paralysis of the right sciatic nerve. The Board recognizes the Veteran's assertions concerning his neurologic symptoms and finds these reports to be consistent as a whole, with the December 2012, August 2016, and December 2021 VA examiners' findings regarding the Veteran's right lower extremity sciatica symptoms. The Board notes the August 2016 VA examiner identified the Veteran's symptoms of radiculopathy as moderate constant pain (may be excruciating at times) and moderate intermittent pain. Further, the Board notes the December 2012 and December 2021 VA examinations noted decreased sensitivity to light touching in the Veteran's right foot and lower leg. Additionally, the Board acknowledges the December 2021 VA examiner's determination that the Veteran's right leg radiculopathy made the Veteran a fall risk. Additionally, the Board finds lay evidence of record does not show that the Veteran's right lower extremity radiculopathy manifested as symptoms warranting a disability rating in excess of 20 percent under 38 C.F.R. § 4.130, DC 8720. While the Veteran's nerve involvement is not wholly sensory, the evidence of record does not show an absence of sensation to touch to the Veteran's right lower leg. Further there is no evidence of bowel or bladder impairment. Moreover, although the December 2021 VA examination identified the Veteran as a fall risk, the evidence of record does not show the Veteran's nerve abnormality caused the Veteran to fall or regularly use assistive devices for ambulation. Neither is there any indication of impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. Accordingly, the Veteran's right leg radiculopathy has not displayed severe incomplete paralysis or complete paralysis. The Board has considered all other potentially applicable criteria, but the evidence of record does not show 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 finding that a 20 percent rating is warranted for the pendency of the appeal, the Board recognizes that although there was some fluctuation in the nature and severity of the Veteran's symptoms, and symptoms associated with lower disability ratings, overall, the evidence of record demonstrates that the type and extent, frequency and severity of the Veteran's symptoms have been relatively consistent throughout the period on appeal, and more nearly approximates the criteria required for an increased disability rating. 38 C.F.R. § 4.7. The evidence of record demonstrates the severity of the Veteran's radicular pain, reduced sensation, and impairment of motor functions most closely approximate symptoms of moderate incomplete paralysis. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record supports an initial disability rating of 20 percent. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.130, DC. To this extent, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for a heart disorder, to include CAD, is remanded. The Veteran contends that his heart disorders, to include CAD, are related to his active-duty service, including as secondary to his service-connected psychiatric disability. In response to the Board's October 2021 remand, the Veteran underwent a VA examination in November 2021. At that time, the examiner diagnosed atherosclerotic cardiovascular disease and valvular heart disease. The examiner was asked to address whether the conditions were proximately due to or the result of the Veteran's service-connected psychiatric disability, to include medication he took to treat the disability. The examiner was also asked to discuss aggravation of the condition. In the resulting examination report, the examiner indicated that the Veteran's heart disease was due to hyperlipidemia and substance abuse. In response, the RO requested an addendum opinion to address whether the Veteran's substance abuse was due to his service-connected psychiatric disability. In a February 2022 medical opinion, a VA examiner explained that medical literature did not support an association between psychiatric conditions and CAD and thus, the Veteran's claimed condition was less likely than not proximately due to or the result of his service-connected condition. The Board finds that another remand is required to provide a medical opinion that adequately addresses the Veteran's contentions regarding his heart disorder. The February 2022 examiner failed to address the link, if any, between the Veteran's substance abuse and his psychiatric disability; he also failed to provide an adequate rationale in support of the conclusion offered. Further, the opinion failed to address whether the Veteran's service-connected psychiatric disability aggravated his heart disorders. See El-Amin v. Shinseki, 26 Vet. App. 136, 138-40 (2012); Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, remand is needed for further development. 2. Entitlement to service connection for right knee disorder is remanded. 3. Entitlement to service connection for left knee disorder is remanded. The Veteran contends that his bilateral knee disorders are related to his active service, to include as secondary to his service-connected back disability. In November 2021, the Veteran underwent a VA examination to address his bilateral knee disorders. The VA examiner provided the diagnosis of degenerative arthritis, other than post-traumatic. The Veteran reported bilateral tenderness with kneeling and bumping objects, and difficulty kneeling or squatting. The examiner reported the Veteran's separation examination was negative for any knee condition, and noted the Veteran's March 2010 bilateral knee x-rays showed only minimal degenerative changes. The examiner concluded that if the Veteran sustained a knee injury during active duty, prior to 1974, he would have most likely displayed more significant degeneration in his 2010 x-rays. Thus, the VA examiner opined that the Veteran's bilateral knee disorder was less likely than not incurred in or caused by the Veteran's active-duty service. Additionally, the VA examiner provided the opinion that the Veteran's bilateral knee disorders were less likely than not proximately due to or the result of the Veteran's service-connected back disability. The VA examiner noted that, as the Veteran had a 10 percent rating for his back condition, it was unlikely the Veteran's back condition was so significant as to alter the Veteran's biomechanics leading to the Veteran's bilateral knee arthritis. Further, the VA examiner provided the opinion that there was no evidence of aggravation for the Veteran's knee disabilities as the Veteran's range of motion (ROM) increased in his most recent bilateral knee examination. The opinions provided in the November 2021 examination are inadequate to adjudicate the Veteran's claim. The VA examinations offer conclusory opinions without supporting data or a reasoned medical explanation regarding whether the Veteran's current knee disorders were incurred in or related to his active service. See Barr, supra; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 299-304 (2008)(a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). Further, the examiner failed to provide adequate rationale for the medical opinions addressing whether the Veteran's bilateral knee disorders were related to or caused by his service-connected back disability. He cited to the Veteran's current disability rating, which the Board notes is currently on appeal, as medical support of the severity of Veteran's back disability. However, the agency of original jurisdiction's assignment of an initial disability rating does not provide medical rationale in support of a medical opinion. Additionally, the VA examiner failed to provide adequately articulate support as to why the Veteran's change in bilateral knee ROM indicated a lack aggravation of the Veteran's knee disorders, to include bilateral degenerative arthritis of the knee. A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Absent sufficient rationale, the November 2021 VA opinion is inadequate to adjudicate the Veteran's claim. Nieves-Rodriguez, 22 Vet. App. at 304. Accordingly, remand is needed to provide the Veteran an opinion which adequately addresses the etiology of his knee disorders. Barr, 21 Vet. App. at 312. 4. Entitlement to an initial rating in excess of 10 percent for a back disability is remanded. The Veteran contends that the symptoms of his back disability warrant an increased initial disability rating. A review of the evidence reveals the Veteran's history of reports of worsening pain and symptoms and flare-ups of his thoracolumbar spine disability. Notably, at a November 2021 VA examination, the Veteran reported that his back locked up at times and he could not straighten it properly. He described flare-ups of his spine disability, which caused difficulty with lifting, prolonged standing, and prolonged walking. Further, the Veteran reported increased low back pain during cold weather. However, the VA examiner did not provide an estimate of the Veteran's functional impairment in terms of ROM during flare-ups and after repeated use over time. Thus, the Board finds that a remand is required to provide the Veteran an adequate examination. See Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2007); see also Barr, supra. Further, upon remand, the Veteran's reported periods of locking and an inability to straighten his thoracolumbar spine must be addressed. See Chavis v. McDonough, 34 Vet. App. 1, 20 (2021)(criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of his heart disorders, to include coronary artery disease. Following a review of the evidence of record, the examiner is asked to diagnose all heart disorders present during the appeal period. Then, with regard to each, the examiner should address the following: a) whether it is at least as likely as not (a 50 percent probability or greater) that the heart disorder was proximately caused by, or the result of the Veteran's service-connected psychiatric disability, including as a result of treatment and/or medication taken for any service-connected disability, as well as any related substance abuse. b) whether it is at least as likely as not that the Veteran's heart disorder was aggravated by his service-connected psychiatric disability, including as a result of treatment and/or medication taken for any service-connected disability, as well as any related substance abuse. Aggravation is defined as any incremental increase in disability or any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions, regardless of its permanence. For the purposes of the examination, the examiner must address the Veteran's substance use condition in relation to his psychiatric disability, and the Veteran's heart disorder as secondary to the psychiatric disability. A complete and detailed rationale should be provided for all opinions rendered. 2. Obtain an addendum opinion to determine the etiology of the Veteran's bilateral knee disorders. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The selected clinician is asked to address whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's bilateral knee disorders, to include degenerative arthritis, had their onset during, or are otherwise etiologically related to, active-duty service. If the clinician finds that the Veteran's bilateral knee disorders are not due to or the result of service, they are asked to provide an opinion as to whether it is at least as likely as not that such were proximately caused or aggravated by his service-connected back disability. Both causation and aggravation must be addressed. Aggravation is defined as any incremental increase in disability or any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions, regardless of its permanence. A complete and detailed rationale should be provided for all opinions rendered. 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine 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 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. In providing the requested opinion, the examiner is asked to specifically address the Veteran's reports of locking of his back and his inability to straighten his back at times (as reported in the December 2012, August 2016, and December 2021 VA examinations) and whether these symptoms are considered to be functional impairment equivalent to ankylosis. A complete and detailed rationale should be provided for all opinions rendered. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.