Citation Nr: 23017281 Decision Date: 03/20/23 Archive Date: 03/20/23 DOCKET NO. 13-10 373 DATE: March 20, 2023 ORDER Entitlement to a rating higher than 10 percent for left lower extremity radiculopathy prior to August 4, 2020 is denied. REMANDED Entitlement to a rating higher than 20 percent for left lower extremity radiculopathy from August 4, 2020 is remanded. Entitlement to a rating higher than 10 percent for right lower extremity radiculopathy from February 12, 2010 is remanded. Entitlement to a rating higher than 40 percent for low back strain with spondylolisthesis and degenerative disc disease, L5-S1 is remanded. FINDING OF FACT The Veteran's left lower extremity radiculopathy manifested in no more than mild incomplete paralysis prior to August 4, 2020. CONCLUSION OF LAW The criteria for entitlement to a rating higher than 10 percent for left lower extremity radiculopathy prior to August 4, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (Code) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1992 to December 1996. These matters were last before the Board of Veterans' Appeals (Board) in two different decisions. A February 2021 Board decision denied increased rating claims for radiculopathy of the left and right lower extremities, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2021 Order, the Court granted the joint motion for partial remand wherein the parties agreed the Board would remand to afford the Veteran an opportunity for a hearing as he had requested in October 2020. A September 2021 Board decision denied entitlement to a rating in excess of 40 percent for a low back disability. The Veteran appealed that decision to the Court. In a July 2022 Order, the Court granted a joint motion that vacated the Board's September 2021 decision and remanded the case for action consistent with the terms of the Joint Motion for Remand. The matters are returned to the Board. In correspondence dated in February 2023, the Veteran, through his authorized representative, requested that his request for a hearing before the Board be withdrawn. As such, the Veteran's request for a hearing before the Board is withdrawn. See 38 C.F.R. § 20.704(e). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In general, 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). However, consideration also 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to a rating higher than 10 percent for left lower extremity radiculopathy prior to August 4, 2020 The Veteran contends he is entitled to a higher rating for his service-connected left lower extremity radiculopathy disability. His left lower extremity radiculopathy is currently assigned a 10 percent rating prior to August 4, 2020 under Code 8520, paralysis of the sciatic nerve. Under Code 8520, mild incomplete paralysis is rated 10 percent disabling, moderate incomplete paralysis is rated 20 percent disabling, moderately severe incomplete paralysis is rated 40 percent disabling, and severe incomplete paralysis (with marked muscular atrophy) is rated 60 percent disabling. An 80 percent rating is warranted where there is complete paralysis and "the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost." The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis. The terms "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Additionally, when the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. At a July 2010 VA examination, the Veteran reported painful tingling in his right and left foot that caused difficulty walking. On clinical evaluation, the Veteran showed decreased sensation to pinprick bilaterally below the knee to the foot. There was complete insensitivity to pinprick on the soles of the feet. Position and vibration sense were normal. No focal weakness was noted. Strength was within normal limits. Straight leg raise test was to about 50 degrees bilaterally with pain and decreased sensation or numbness below the knee to the foot. In his November 2010 informal claim for an increased rating, the Veteran reported that his legs and feet, especially the left, would go numb and cause him to drag his foot or delay daily activities. At a March 2011 VA examination, the Veteran reported daily pain that traveled to his buttocks, legs, and feet, as well as daily weakness. He also reported numbness. On clinical evaluation, his motor function, muscle strength, muscle tone, and deep tendon reflexes were normal. Pinprick sensation, vibratory sensation, and two-point discrimination were abnormal on the left. Straight leg raise test was positive on the left. The examiner noted left sciatic nerve impairment with decreased sensation. In an April 2012 evaluation, the Veteran's private treating provider, Dr. D.B., reported that the Veteran's left lower extremity radiculopathy was moderately severe. Straight leg raise test was positive bilaterally. Pain, numbness, and weakness in the bilateral lower extremities was noted. A January 2014 VA treatment record notes that the Veteran continued to run and engage in "insanity workouts." Intermittent numbness in the bilateral lower extremities was noted. A September 2014 private neurological evaluation noted normal sensation of the bilateral lower extremities. No motor deficits were noted. A January 2015 VA treatment record notes intermittent leg pain and numbness. The Veteran also reported that he completed an "INSANITY" workout about four months prior, heard a pop, and experienced a progression of leg symptoms. However, it was noted that the Veteran continued to run and do high impact activities, albeit less frequently due to pain. In March 2015, the Veteran submitted a private evaluation, completed by Dr. C.H., which noted sensory loss, reflex changes, and abnormal gait. The straight leg raise test was positive bilaterally. Dr. C.H. noted that the Veteran's left lower extremity radiculopathy was moderately severe. A July 2015 VA treatment record noted that the Veteran's back and leg pain were affecting his ability to be active. He worked at a desk. Pursuant to the Board's September 2015 remand, the Veteran underwent another VA examination in January 2016. The Veteran reported constant numbness and tingling in both legs. On clinical evaluation, muscle strength and deep tendon reflexes were normal. No muscle atrophy was noted. Decreased sensation was noted bilaterally. Straight leg raise test was negative bilaterally. The Veteran denied constant or intermittent pain. Mild paresthesias and/or dysesthesias and numbness were noted bilaterally. The examiner noted mild sensory radiculopathy bilaterally. A September 2018 VA treatment record noted that the Veteran tried to walk 10,000 steps per day. An April 2019 VA treatment record showed normal muscle strength. The Veteran reported dull, achy, burning, tightness, numbness, and tingling that sometimes radiated to his legs. Based on consideration of all pertinent evidence of record for the period prior to August 4, 2020, including the Veteran's complaints, the Board finds that the Veteran's left lower extremity radiculopathy more nearly approximated mild incomplete paralysis prior to August 4, 2020. This is consistent with the March 2011 VA examiner's findings that the Veteran had left sciatic nerve impairment with decreased sensation; and the January 2016 VA examiner's findings that the Veteran had mild paresthesias and/or dysesthesias, numbness, and mild sensory radiculopathy. Moreover, the Veteran only experienced sensory deficits without any motor deficits. Muscle strength and deep tendon reflexes were consistently noted as normal. Additionally, the Veteran predominately described his symptoms as intermittent. The Board acknowledges Dr. D.B. and Dr. C.H.'s description of the Veteran's left lower extremity radiculopathy as moderately severe. However, their characterization of the Veteran's left lower extremity radiculopathy as moderately severe is inconsistent with the rating schedule, as the Veteran's radiculopathy symptomatology has been wholly sensory. Additionally, as noted above, their findings of reflex changes and Dr. D.B.'s finding of muscle weakness is inconsistent with the other evidence of record. Thus, their evaluations are assigned no probative weight. Accordingly, for the period prior to August 4, 2020, the Veteran's left lower extremity radiculopathy did not more nearly approximate moderate incomplete paralysis. The Board finds that the Veteran's left lower extremity radiculopathy has manifested in no more than mild incomplete paralysis prior to August 4, 2020, warranting a rating of 10 percent. As discussed, the Board has considered the application of staged ratings and find that the rating as set forth herein is appropriate. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a rating higher than 10 percent for left lower extremity radiculopathy prior to August 4, 2020 is warranted. Rather, the evidence persuasively weighs against such a rating. The benefit of the doubt doctrine is therefore not for application. The Board has considered the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher ratings also include a claim for a total disability rating based on individual unemployability (TDIU) when the Veteran claims he is unable to work due to a service-connected disability). The Board finds that Rice is not applicable to the instant matter. The Board acknowledges that the Veteran claimed that his service-connected lower extremity disability affected his ability to meet physical demands of the job because he had to work at a desk, which he stated limited opportunities for career progression. However, the Veteran has not claimed and the record does not show that his disability acting alone or in conjunction with his other disabilities prevented gainful employment. Additionally, no other issues have been raised by the Veteran or his representative regarding this matter. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND Entitlement to a rating higher than 20 percent for left lower extremity radiculopathy from August 4, 2020 Entitlement to a rating higher than 10 percent for right lower extremity radiculopathy from February 12, 2010 Entitlement to a rating higher than 40 percent for low back strain with spondylolisthesis and degenerative disc disease, L5-S1 The Board finds that remand is necessary before the matters noted above can be fully adjudicated. The Veteran seeks higher ratings for the above claimed service-connected disabilities. The Veteran reported that his bilateral lower extremity radiculopathy and low back conditions were more severe than the currently assigned ratings. In August 2021, he submitted private disability benefits questionnaires (DBQ) for peripheral nerves conditions and back conditions from Dr. R.D., which show an increase in severity of his bilateral lower extremity radiculopathy and low back disabilities. However, the Board finds the August 2021 DBQs lack probative value and therefore are inadequate for rating the Veteran's lower extremities and back disabilities. This is so because Dr. R.D. did not conduct any diagnostic tests, including range of motion and sensation testing. In addition, findings reported in the DBQs are primarily based on the Veteran's report of symptoms and not based on an in-person examination; Dr. R.D. did not conduct an in-person examination of the Veteran, but rather, conducted a telephone interview. For these reasons, the Board finds the private DBQs inadequate for rating the Veteran's lower extremities and low back disabilities. Since the Board has deemed the August 2021 private DBQ inadequate and the Veteran still claims an increase in the severity of his service-connected lower extremities and low back disabilities and is seeking higher ratings for them, he should be provided contemporaneous examinations to properly rate the current severity of his service-connected disabilities. Review of the record reveals the Veteran was last examined by VA in August 2020 for the claimed disabilities. Considering that the Veteran's service-connected disabilities may have increased in severity, and mindful that he was last examined more than 2 years ago, current examinations must be afforded to accurately assess the current level of severity of the service-connected disabilities. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records from April 2021 to the present. 2. Schedule the Veteran for an in-person examination by an appropriate clinician to determine the current severity of his service-connected low back disability. The most up-to-date DBQ should be used. 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 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). 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). 3. Schedule the Veteran for an in-person examination by an appropriate clinician to determine the nature and severity of his service-connected bilateral lower extremity radiculopathy disability. The most up-to-date DBQ should be used. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. Based on a review of the claims file, the clinician should opine as to whether, at any point from August 4, 2020 (for left lower extremity radiculopathy to the present), and from February 12, 2010 (for right lower extremity radiculopathy to the present), the record reflects any change(s) in severity of the Veteran's bilateral lower extremity radiculopathy, and if so, the approximate date(s) of any such change(s). If the clinician cannot provide the requested current and/or retrospective opinion(s), the clinician should state why and provide a reasoned explanation for the determination. A. Dean Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Young, 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.