Veteranclaims’s Blog

October 16, 2021

Single Judge Application; Spellers v. Wilkie; the Court held in Spellers v. Wilkie, with respect to the diagnostic code for incomplete paralysis of the sciatic nerve, which also rates the condition based solely on the level of severity (i.e., mild, moderate, severe), the “lack of objective criteria for differentiating between the specified severity levels means that any evidence indicating severity of incomplete paralysis of the sciatic nerve is necessarily relevant to the schedular rating level.” 30 Vet.App. 211, 219 (2018) (emphasis omitted);

Filed under: Uncategorized — Tags: — veteranclaims @ 8:19 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-1009
ANDREW OWENS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Army veteran Andrew Owens appeals through counsel a December 14,
2018, Board of Veterans’ Appeals decision denying an effective date earlier than December 17,
2015, for left lower extremity radiculopathy associated with lumber degenerative disc disease
(DDD); an initial rating in excess of 10% for left lower extremity radiculopathy; and an initial
rating in excess of 50% for mood disorder with post-traumatic stress disorder (PTSD) prior to July
22, 2015.1 The appeal is timely; the Court has jurisdiction to review the Board decision; and singlejudge
disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1
Vet.App. 23, 25-26 (1990).
We are first asked to decide whether the Board failed to address favorable evidence when
assessing the left lower extremity radiculopathy claims. Because the Board did not account for
seemingly favorable medical records regarding this condition, the Court will set aside the parts of
the Board decision denying an effective date earlier than December 17, 2015, and an initial rating
in excess of 10% for left lower extremity radiculopathy. We are next asked to decide whether Mr.
1 The Board also denied a rating in excess of 70% for mood disorder with PTSD from April 4, 2017, and
entitlement to separate compensable ratings for both a mood disorder and PTSD; but, the veteran does not raise any
contentions of error regarding these matters and the Court will not address them. See R. at 4; Pederson v. McDonald,
27 Vet.App. 276, 281-85 (2015) (en banc) (declining to review the merits of an issue not argued on appeal and
dismissing the appeal of that issue); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (same).
2
Owens was entitled to an examination to determine the proper rating for his mood disorder with
PTSD for the period prior to July 22, 2015. Because an examination was not necessary to assess
the proper rating for this period, the Court will affirm the part of the decision denying an initial
rating in excess of 50% for mood disorder with PTSD prior to July 22, 2015. The remainder of the
appeal is dismissed.
I. ANALYSIS
A. Left Lower Extremity Radiculopathy

  1. Earlier effective date
    First, Mr. Owens argues that the Board failed to address favorable evidence when it denied
    an effective date earlier than December 17, 2015, for left lower extremity radiculopathy.
    Appellant’s Brief (Br.) at 5-7. He asserts that the Board did not discuss an October 2011 treatment
    record in which he reported numbness and tingling in his feet or that a June 2015 VA examination
    noted hypoactive deep tendon reflex of the left knee. Id.
    With any finding on a material issue of fact and law presented on the record, the Board
    must support its determination with an adequate statement of reasons or bases that enables the
    claimant to understand the precise basis for that determination and facilitates review in this Court.
    38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this
    requirement, the Board must analyze the credibility and probative value of evidence, account for
    evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of material
    evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
    78 F.3d 604 (Fed. Cir. 1996) (table).
    Here, the Board stated that the issue on appeal stemmed from a December 2006 claim for
    a left leg disability, but that evidence of left lower extremity radiculopathy did not arise prior to
    the findings in a December 17, 2015, VA treatment record. R. at 10 (citing 38 C.F.R. § 3.400 and
    explaining that the effective date generally is the date of receipt of a claim or the date entitlement
    arose, whichever is later, and that here the date of entitlement—December 2015—was later). The
    Board found that the record did not show treatment for lower left radiculopathy until the December
    2015 treatment record. Id. The Board noted that, during the June 2015 VA examination, the veteran
    demonstrated a normal sensory examination and a negative left straight leg test, as well as denied
    3
    pain, paresthesia, and numbness of the left lower extremity. Id. The Board also noted that the
    examiner indicated that there was involvement of the nerve root only on the right side. Id.
    However, as Mr. Owens contends, the Board did not discuss an October 2011 treatment
    record in which he complained of numbness and tingling in his feet. R. at 536; see R. at 10. A
    report of such symptoms prior to the assigned effective date appears to be favorable evidence, see
    Caluza, 7 Vet.App. at 506, particularly where the Board found that (1) the appropriate effective
    date was December 17, 2015, based on a treatment record in which the veteran reported numbness
    in his feet and legs, R. at 342; and (2) no evidence of left lower extremity radiculopathy had arisen
    prior to that date, R. at 10. And, although Mr. Owens did not report symptoms of lower left
    extremity radiculopathy during the June 2015 examination, see Secretary’s Br. at 12, he
    complained of numbness and tingling in October 2011.
    Because the Board did not provide reasons or bases for rejecting this seemingly favorable
    evidence, we will remand the claim for an effective date earlier than December 17, 2015, for lower
    left extremity radiculopathy. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that
    remand is the appropriate remedy where the Board did not provide an adequate statement of
    reasons or bases for its determinations); see also 38 U.S.C. § 7112 (a remand must be performed
    in an expeditious manner); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant
    to entail a critical examination of the justification for the decision.”). Because on remand the Board
    must reassess all evidence of record, including the June 2015 examination and its notation of a
    hypoactive deep tendon reflex of the left knee, we need not address Mr. Owens’s reasons or bases
    argument as to that evidence now. See Best v. Principi, 15 Vet.App. 18, 19 (2001).
  2. Higher rating
    Next, Mr. Owens argues that the Board also failed to account for favorable evidence when
    it denied a rating in excess of 10% for left lower extremity radiculopathy. Appellant’s Br. at 7-8.
    He contends that the Board did not discuss a January 2017 medical record in which he reported
    pain that radiated down his legs into his feet. Id.
    The veteran’s left lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a,
    Diagnostic Code 8521, which provides ratings for incomplete paralysis of the external popliteal
    nerve. That diagnostic code provides a 10% rating for mild incomplete paralysis, a 20% rating for
    moderate incomplete paralysis, and a 30% rating for severe incomplete paralysis. 38 C.F.R.
    § 4.124a, Diagnostic Code 8521 (2019). A note preceding the schedule of ratings for diseases of
    4
    the peripheral nerves provides, as relevant here, that, “[w]hen the involvement is wholly sensory,
    the rating should be for the mild, or at most, the moderate degree.” Id.
    As the Court held in Spellers v. Wilkie, with respect to the diagnostic code for incomplete paralysis of the sciatic nerve, which also rates the condition based solely on the level of severity (i.e., mild, moderate, severe), the “lack of objective criteria for differentiating between the
    specified severity levels means that any evidence indicating severity of incomplete paralysis of the sciatic nerve is necessarily relevant to the schedular rating level.” 30 Vet.App. 211, 219 (2018)
    (emphasis omitted).
    Also, when rating nerve injuries, “attention should be given to . . . sensory
    disturbances.” 38 C.F.R. § 4.120 (2019).
    Initially, we will address the issue of wholly sensory radiculopathy. As Mr. Owens states,
    Appellant’s Reply Br. at 3, the wholly sensory nature of his condition is not a bar to an evaluation
    higher than his current 10% rating, because a 20% rating may also be assigned for wholly sensory
    symptoms, so long as they are moderate, see § 4.124a; see also Secretary’s Br. at 19 (citing Miller
    v. Shulkin, 28 Vet.App. 376, 380 (2017), for the proposition that a rating in excess of 20% may
    not be assigned where a condition is wholly sensory). Thus, the question is whether the veteran’s
    wholly sensory radiculopathy was mild or moderate.
    Here, the Board found that December 2015 and February 2016 VA treatment records
    noting paresthesia, tingling, and numbness in the left lower extremity reflected a mild condition
    most consistent with a 10% radiculopathy rating. However, as Mr. Owens asserts, the Board did
    not address a January 2017 medical record in which he reported experiencing pain that radiated
    down his legs into his feet. R. at 245 (also reporting numbness and tingling). This appears to be a
    sensory symptom indicating severity that is separate from the symptoms he reported in earlier
    medical records. See Spellers, 30 Vet.App. at 219. The Board did not acknowledge or account for
    this evidence and thus its reasons or bases are inadequate. See Caluza, 7 Vet.App. at 506.
    Although the January 2017 medical record documented a consult for chronic low back
    pain, Secretary’s Br. at 20, we note that Mr. Owens’s radiculopathy is associated with his lumbar
    DDD, R. at 7. Further, although the veteran reported that pain only “sometimes” radiates down his
    legs, Secretary’s Br. at 20; R. at 7, this indication of frequency goes to the level of severity, rather
    than whether the pain itself existed, and is for the Board to discuss, see Hensley v. West, 212 F.3d
    1255, 1263 (Fed. Cir. 2000) (the Board is tasked with determining the proper disability rating in
    5
    the first instance). Finally, although the doctor in January 2017 found that sensation was intact,
    Secretary’s Br. at 21, Mr. Owens also reported pain during the visit.
    Because the Board did not address this evidence, we will remand the claim for an initial
    rating in excess of 10% for lower left extremity radiculopathy. See Tucker, 11 Vet.App. at 374;
    see also § 7112; Fletcher, 1 Vet.App. at 397. As to Mr. Owens’s argument that remand is needed
    for the Board to afford him a new examination to determine the proper rating for his lower left
    extremity radiculopathy, or explain why it did not need to do so, as stated, the Court is remanding
    the claim for a higher rating and the Board will necessarily reassess all evidence of record,
    including whether that evidence is adequate to assign a rating or whether a new examination is
    required, and is obligated to provide adequate reasons or bases in its new decision. See Best, 15
    Vet.App. at 19.
    B. Mood Disorder with PTSD
    We now turn to Mr. Owens’s argument regarding entitlement to an examination to
    determine the proper rating for his mood disorder with PTSD for the period prior to July 22, 2015.
    Appellant’s Br. at 10-12; see R. at 12-13 (the veteran currently has a 50% rating for his mental
    disorder from December 18, 2006, to July 22, 2015). The Board found that a July 2015 treatment
    record demonstrated that a 70% rating for his mood disorder with PTSD was warranted from the
    date of that record. Appellant’s Br. at 11; see also R. at 13 (the veteran previously had a 70% rating
    from April 4, 2017, and the Board stated that it would “essentially change the effective date of the
    70[%] rating to July 22, 2015″).
    The July 2015 treatment record indicated that Mr. Owens’s symptoms included intrusive
    thoughts, hypervigilance, heightened startle response, crowd avoidance, difficulty being around
    people, always sitting with his back to the wall in restaurants, lack of friendship and distance from
    family resulting in a withdrawn lifestyle, and a bridge phobia. See R. at 15. Mr. Owens asserts that
    it is apparent that he did not “suddenly develop” all those symptoms on the day of the July 2015
    visit and that he is entitled to the benefit of the doubt that they began prior to his July 2015
    treatment. Appellant’s Br. at 11-12.
    He contends that the Board did not address whether the evidence was sufficient to rate his
    mental disorder prior to July 2015 or if a retrospective examination was instead required. Id. (citing
    Chotta v. Peake, 22 Vet.App. 80, 85-87 (2008)); id. at 10 (stating that the only other medical
    evidence that the Board cited from that period was a November 2011 VA examination). In his
    6
    reply brief, Mr. Owens states that the Board was obligated to explain whether a retrospective
    opinion was required for the period between November 2011 and July 2015 because the July 2015
    treatment record showed that his mental condition had worsened since the November 2011
    examination. Appellant’s Reply Br. at 7-8; see R. at 2268-72 (the November 2011 examination
    noting that Mr. Owens was married with children and not indicating any social impairment).
    In Chotta, the Court held that the duty to assist “may include obtaining a retrospective
    medical opinion” “if a disability rating cannot be awarded based on the available evidence.” 22
    Vet.App. at 85-86. This was especially so in Mr. Chotta’s case because the absence of medical
    records between 1947 and 1997 provided VA no evidence on which to evaluate his serviceconnected
    condition during that period. Id.
    The Court finds that the Board was not obligated to discuss whether a retrospective opinion
    was necessary here. Although Mr. Owens is correct as a matter of logic that at least some of his
    worsened mood disorder symptoms recorded in the July 2015 treatment record and relied on by
    the Board to award an increased rating must have been present before the date of that visit, there
    is nothing in the treatment record itself or elsewhere in the record that identifies an earlier date of
    onset or suggests one more appropriate than that assigned. See R. at 13 (the Board stating that it
    would “essentially change the effective date of the 70[%] rating to July 22, 2015”).
    And a retrospective opinion to determine when exactly those symptoms began, particularly
    between November 2011 and July 2015, is not required. Compare Chotta, 22 Vet.App. at 85-86
    (where VA had to assess a 50-year period). Indeed, the Board must be able to review the available
    evidence of record (which, here, includes the November 2011 VA examination and July 2015
    treatment record) to ascertain if and when a higher rating was warranted, without having to
    speculate whether symptoms noted in one of the records possibly existed at an earlier time.
    Requiring the Board to do so would seemingly result in a continuous need for a new examination.
    Further, in addition to the November 2011 examination and July 2015 treatment record,
    the Board noted that it reviewed outpatient treatment records during this period, but found that the
    evidence prior to July 2015 did not reflect a mental condition resulting in impairment
    commensurate with a 70% rating. R. at 15. Thus, the Board impliedly found that a rating could be
    awarded on the available evidence, and therefore a retrospective examination, or a discussion of
    one, was not necessary. See Chotta, 22 Vet.App. at 85-86; see also R. at 2490-92 (June 2015 rating
    7
    decision noting that evidence included treatment records from 2011 to present and assigning a 50%
    mood disorder rating from December 18, 2006, to present based on that evidence).
    Accordingly, the Court will affirm the part of the Board decision denying an initial rating
    in excess of 50% for mood disorder with PTSD prior to July 22, 2015.
    II. CONCLUSION
    On consideration of the foregoing, the portions of the December 14, 2018, Board decision
    denying an effective date earlier than December 17, 2015, and an initial rating in excess of 10%
    for left lower extremity radiculopathy are SET ASIDE and the matters are REMANDED. The
    portion of the decision denying an initial rating in excess of 50% for mood disorder with PTSD
    prior to July 22, 2015 is AFFIRMED. The remainder of the appeal is DISMISSED.
    DATED: April 3, 2020
    Copies to:
    Nicholas L. Phinney, Esq.
    VA General Counsel (027)

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