Citation Nr: 22033663 Decision Date: 06/08/22 Archive Date: 06/08/22 DOCKET NO. 17-65 975 DATE: June 8, 2022 ORDER Prior to April 25, 2016, entitlement to a disability rating in excess of 10 percent for the Veteran's left lower extremity radiculopathy is denied. From April 25, 2016 to October 14, 2019, entitlement to a disability rating in excess of 20 percent for the Veteran's left lower extremity radiculopathy is denied. Prior to October 15, 2019, entitlement to a disability rating in excess of 10 percent for the Veteran's right lower extremity radiculopathy is denied. REMANDED Entitlement to a total disability based on individual unemployability (TDIU) prior to April 14, 2017 is remanded. FINDINGS OF FACT 1. Prior to April 25, 2016, the Veteran's left lower extremity radiculopathy manifested by mild severe incomplete paralysis. 2. From April 25, 2016 to October 14, 2019, the Veteran's left lower extremity radiculopathy manifested by moderate incomplete paralysis. 3. Prior to October 15, 2019, the Veteran's right lower extremity radiculopathy manifested by mild incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to April 25, 2016, the criteria for a disability rating in excess of 10 percent for the Veteran's left lower extremity radiculopathy have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 2. From April 25, 2016 to October 14, 2019, the criteria for a disability rating in excess of 20 percent for the Veteran's left lower extremity radiculopathy have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. Prior to October 15, 2019, the criteria for a disability rating in excess of 10 percent for the Veteran's right lower extremity radiculopathy have not been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from December 1986 to November 1989. In September 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) and a copy of the transcript is of record. In April 2021, as part of the Veteran's increased rating claim for his back disability, the Board decided staged disability ratings for his right and left lower extremity radiculopathy. He appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2022, the Court granted a Joint Motion for Partial Vacatur and Remand filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision and remanding the matter for readjudication. The Court determined that the Board provided an inadequate reasons and bases when determining the disability ratings for his right and left lower extremity radiculopathy. The Board notes that the issues on appeal concern the ratings for both extremities prior to October 15, 2019. The parties to the JMR expressly noted that the Veteran no longer seeks to pursue the denial of entitlement to disability ratings in excess of 40 percent each, effective October 15, 2019, for left and right lower extremity radiculopathy. In the April 2021 decision, the Board remanded the issue of entitlement to a TDIU prior to April 14, 2017. The issue is still being developed at the AOJ and has not been returned to the Board. However, neither the Veteran nor his attorney have raised issues with VA's discharge of its duty to notify or duty to assist regarding these claims. 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). Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and 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). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007); see also 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400. Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart, 21 Vet. App. 505. The Veteran's left and right lower extremity radiculopathy are rated under Diagnostic Code 8520. 38 C.F.R. § 4.124a. Under this Diagnostic Code, a 10 percent rating is warranted with mild incomplete paralysis. A 20 percent rating is warranted with moderate incomplete paralysis. A 40 percent rating is warranted with moderately severe incomplete paralysis. A 60 percent rating is warranted with severe incomplete paralysis marked with muscular atrophy. An 80 percent rating is warranted with complete paralysis where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee weakened for (very rarely) lost. 1. Left Lower Extremity The Veteran's left lower extremity radiculopathy is assigned a 10 percent rating beginning August 13, 2012, a 20 percent rating from April 25, 2016, and a 40 percent rating from October 15, 2019. As noted above, the parties to the JMR expressly did not appeal the 40 percent rating that became effective October 15, 2019. Prior to April 25, 2016 At his February 2013 VA back examination, the Veteran reported experiencing back pain that radiated down both of his legs. The examiner noted the Veteran tested normal on the sensory, reflex, and strength examinations for both lower extremities. His straight leg raising test was negative bilaterally. He experienced mild intermittent pain and mild paresthesia and/or dysesthesias. He did not have constant pain. He did not have muscle atrophy. The examiner described his overall disability as mild. At his May 2014 VA back examination, the examiner stated that the Veteran may have symptoms that are secondary to radiculopathy because he had pain that radiated to his left foot on a constant basis. He described it as sharp and severe. The examiner stated that "if this was to be radiculopathy," it would be mild. His reflexes were 1+ at the knees and ankles. He did not have muscle atrophy. His sensation was intact and his straight leg raise was negative. At a June 2014 VA medical appointment, he reported low back pain with pain radiating to his left buttock and left thigh. In an August 2014 addendum to the May 2014 VA back examination, the examiner concluded that the Veteran's symptoms in his left lower extremity were due to radiculopathy. In June 2015, the Veteran reported chronic low back pain that radiated down his left leg. Prior to April 25, 2016, the Veteran's left lower extremity radiculopathy is more accurately described as mild incomplete paralysis, but no higher. First, it is almost wholly sensory. 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 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). The Veteran's left lower extremity radiculopathy symptoms are mostly sensory. He has pain and parasthesia and/or dysesthesias. He does not have skin changes. Nonsensory impairment can include symptoms such as "a reflex abnormality, [or] weakness or muscle atrophy." Miller v. Shulkin, 28 Vet. App. 376, 380 (2017). The VA examinations show that his symptoms do not include weakness or muscle atrophy. Only once during this period did he have decreased reflexes. This was at his May 2014 VA back examination where his reflexes were 1+ in his left lower extremity. Otherwise his lower extremity reflexes were normal. Additionally, the VA treatment records do not show nonsensory impairment, including decreased reflexes. One occurrence of one nonsensory symptom does not automatically mean that that disability is moderately severe. The totality of the Veteran's disability picture supports a finding that it is mild. This is because at his February 2013 VA examination, his sensory symptoms, intermittent pain and paresthesias and/or dysesthesias, were all described as mild. He did not have any constant pain. To be described as moderate, more of these symptoms would need to be categorized as moderate. Additionally, he also did not have any nonsensory manifestations outside of one abnormal reflex measurement. While the Board acknowledges that the Veteran reported constant radiating pain at the May 2014 VA examination, the examiner specifically noted that if the Veteran had radiculopathy the severity would be mild. The Veteran's VA treatment records do not show that his radiculopathy in his left lower extremity was more severe than what was detected at his February 2013 and May 2014 back examinations. Consequently, the Veteran's symptoms are described as mild and the sensory examination was normal. To be described as "moderate" disability in the left lower extremity, it is reasonable to conclude that more of these symptoms would be moderate and that there be some abnormal sensation test results. A rating in excess of 10 percent is denied prior to April 25, 2016. From April 25, 2016 to October 14, 2019 At his April 2016 VA examination, the examiner that the Veteran had radicular symptoms in his left leg. The Veteran described pain that went from his back to his left foot on a constant basis for many years. He did not report any lower extremity weakness. The examiner noted that the Veteran had reduced strength 4/5 in his hip flexors, quads, hamstrings, ankle dorsiflexion, plantar dorsiflexion, and extensor hallucis longus. A 4/5 muscle strength rating notes active movement against some resistance. He also had decreased reflexes at his knee and ankle; his reflexes were 1+ to indicate hypoactive. The examiner stated that his sciatic nerve was involved. His sensory examination was normal. His straight leg raise test was negative. He did not have muscle atrophy. The examiner rated his disability severity as moderate. The examination showed that the Veteran had two nonsensory symptoms: decreased strength and hypoactive reflexes. In an April 14, 2017 VA treatment record, the health care provider noted that the Veteran described right L5 and S1 radiculopathy, and recommended that he be treated for bilateral lower extremity radiculopathy. At a June 2017 VA treatment record, his reflexes were normal, his strength was normal, and there was no loss of sensation to light touch. At a July 2017 VA treatment appointment, his strength was normal, his sensation was intact to light touch, and his reflexes were 1+. He reported pain and denied numbness and weakness. At an August 2017 VA treatment appointment, his strength was normal, his reflexes were normal at 2+, and his temperature and vibration senses were intact. His sensation to touch was not intact. In a September 2017 VA treatment record, the Veteran reported pain that radiated down to his left posterior calf, foot, and all toes. The Board finds that from April 25, 2016 an increased rating to 20 percent is warranted. The evidence shows the Veteran's disability increased in severity as noted by his reduced muscle strength and reflexes. He also developed decreased sensation to touch by August 2017. Nevertheless, a rating higher than 20 percent is not warranted. Sensory symptoms were not noted aside from reports of constant pain. Additionally, the Board notes that the Veteran's reduction in muscle strength and reflexes was mild, or at most, moderate. These symptoms do not indicate a moderately severe condition as they are on the lower end of the spectrum for each rating. His muscle strength was 4/5 (active movement against some resistance), which is only one level below 5/5 (normal). To be described as moderately severe, it is reasonable to conclude that his strength would need to be 3/5 (active movement against gravity) or 2/5 (active movement with gravity eliminated). It is also reasonable to conclude that to be moderately severe, more sensory symptoms would need to be present. The only time a sensory symptom was reported was in August 2017, when his sensation to light touch was not intact, but his temperature and vibration sensation was normal. Therefore, in considering the evidence of record the Board finds that the Veteran is appropriately rated at 20 percent from April 25, 2016 to October 14, 2019. 2. Right Lower Extremity Radiculopathy The Veteran's right lower extremity radiculopathy is assigned a 10 percent rating beginning April 14, 2017, and a 40 percent rating from October 15, 2019. The parties to the JMR expressly did not challenge the 40 percent rating. In an April 14, 2017, VA treatment record, the health care provider noted that the Veteran described right L5 and S1 radiculopathy and recommended that he be treated for bilateral lower extremity radiculopathy. This record is the first time that he described right lower extremity radiculopathy. He had normal strength and reflexes in June 2017, and his sensation to light touch was intact. He had 1+ reflexes in his right lower extremity in July 2017, but this was the only time he had an abnormal reflex measurement in his right lower extremity. At the same appointment, his strength was normal and his sensation to light touch was intact. At an August 2017 appointment, his strength was normal and his reflexes were normal again at 2+. His sensation to touch, temperature, and vibration was intact in his right lower extremity. In a September 2017 VA treatment record, he reported pain radiating to his right anterior calf and all his toes. Prior VA treatment records and examinations showed only reports of left leg symptoms. The Veteran's complaints consistently concerned his left side. Furthermore, while the records from April 2017 and September 2017 note the presence of radicular pain to the right lower extremity, no functional effects of this pain were described. At his hearing, he testified that he had radiating pain. He stated that sometimes the pain lasted for an hour to an hour and a half, starting in the morning or the afternoon, but that the pain always returned. As noted above, when involvement is wholly sensory the rating should be for the mild or at most moderate degree. 38 C.F.R. § 4.124a. The Veteran's symptoms are mostly wholly sensory in his right lower extremity. He had one instance of nonsensory symptoms: decreased reflex at 1+ in July 2017. He complained of radicular pain and the evidence does not show other functional impairment beyond his reported pain. There is no evidence of muscle atrophy. There is no evidence that he had any sensory symptoms other than pain. For example, the did not have numbness or paresthesias and/or dysesthesias. It is reasonable to conclude that the Veteran would have a sensory symptom other than pain for his disability to be considered moderate. Additionally, the Board finds that one instance of a nonsensory symptom: an abnormal reflex in July 2017, is not severe enough to cause his radiculopathy in his right lower extremity to be moderate. It is reasonable to conclude that his decreased reflex would have appeared at subsequent testing to indicate that it was present more often. Therefore, from April 14, 2017 to October 14, 2019, the Veteran's right lower extremity radiculopathy is best characterized as mild and a 10 percent rating is warranted. REASONS FOR REMAND In April 2021 the Board also remanded the Veteran's TDIU claim for extraschedular consideration for the appeal period prior to April 14, 2017. In an April 2021 rating decision, TDIU was granted beginning April 2, 2015. However, this TDIU grant did not cover the entire appeal period. The AOJ failed to comply with the remand directives concerning extraschedular TDIU and referral to the Director of Compensation Service. The Veteran is entitled to substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). If the Board proceeds with final disposition of an appeal and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. Because there has not been substantial compliance with the April 2021 remand directives, another remand is necessary. The Board stresses the importance of carefully following the directives of this remand to allow for a final resolution of this issue. Therefore, the Board finds that a remand is necessary to refer the issue of extraschedular TDIU to the Director of Compensation Service. The matters are REMANDED for the following action: 1. Refer the claim to the Director of the Compensation Service for consideration of whether a TDIU on an extraschedular basis is warranted. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). 2. Ensure that the directive specified in this remand has been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. After completing this assessment and any other development deemed necessary, adjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.