RICHARD A. GRUDIN

**** ****** ** ***

*-***

Cameron Park, CA 95682-8253

BOARD OF VETERANS’ APPEALS

FOR THE SECRETARY OF VETERANS AFFAIRS

WASHINGTON, DC 20038

Date: September 8, 2023 SS XXX XX 2431

RICHARD A. GRUDIN

3450 PALMER DR STE

4-413

Cameron Park, CA 95682-8253

Dear Appellant:

The Board of Veterans’ Appeals made a decision on your appeal. If your decision

contains a

What happens next

Grant The Department of Veterans Affairs (VA) will contact you regarding next steps, which may include issuing payment. Please refer to VA Form 4597, which is attached for additional options.

Remand Additional development is needed. VA will contact you regarding next steps.

Denial or

Dismissal

Please refer to VA Form 4597, which is attached for your options.

If you have any questions, please contact your representative, if you have one, or check the status of your appeal at http://www.vets.gov. Sincerely yours,

Decision Management Branch

Office of Appellate Support

Enclosures (1)

CC: Disabled American Veterans

Disabled American Veterans

321 South Main Street #200

Providence, RI 02903-7109

BOARD OF VETERANS’ APPEALS

FOR THE SECRETARY OF VETERANS AFFAIRS

WASHINGTON, DC 20038

Date: September 8, 2023 SS XXX XX 2431

RICHARD A. GRUDIN

3450 PALMER DR STE

4-413

Cameron Park, CA 95682-8253

Dear Appellant:

The Board of Veterans’ Appeals made a decision on your appeal. If your decision

contains a

What happens next

Grant The Department of Veterans Affairs (VA) will contact you regarding next steps, which may include issuing payment. Please refer to VA Form 4597, which is attached for additional options.

Remand Additional development is needed. VA will contact you regarding next steps.

Denial or

Dismissal

Please refer to VA Form 4597, which is attached for your options.

If you have any questions, please contact your representative, if you have one, or check the status of your appeal at http://www.vets.gov. Sincerely yours,

Decision Management Branch

Office of Appellate Support

Enclosures (1)

CC: Disabled American Veterans

BOARD OF VETERANS’ APPEALS

FOR THE SECRETARY OF VETERANS AFFAIRS

IN THE APPEAL OF

RICHARD A. GRUDIN

Represented by

Disabled American Veterans

SS XXX XX 2431

Docket No. 18-25 333

DATE: September 8, 2023

ORDER

A disability rating higher than 10 percent for left lower extremity (LLE) radiculopathy prior to November 18, 2017 is denied. A disability rating higher than 10 percent for right lower extremity (RLE) radiculopathy prior to November 18, 2017 is denied. FINDINGS OF FACT

1. Prior to November 18, 2017, the Veteran’s LLE radiculopathy has not been more than mild in severity.

2. Prior to November 18, 2017, the Veteran’s RLE radiculopathy has not been more than mild in severity.

CONCLUSIONS OF LAW

1. The criteria for a disability rating higher than 10 percent for LLE radiculopathy prior to November 18, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R.

§ 4.124a, Diagnostic Code (DC) 8520.

IN THE APPEAL OF

RICHARD A. GRUDIN

SS XXX XX 2431

Docket No. 18-25 333

2

2. The criteria for a disability rating higher than 10 percent for RLE radiculopathy prior to November 18, 2017 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R.

§ 4.124a, DC 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from June 1971 to August 1976. In February 2022, he testified at a hearing held before a Veterans Law Judge (VLJ) at the Board of Veterans’ Appeals (Board). A transcript of the hearing is of record. In August 2022, the Board denied higher evaluations for the Veteran’s radiculopathy of the bilateral lower extremities which he appealed to the United States Court of Appeals for Veterans Claims (the Court). In May 2023, the Court issued an order that vacated the Board decision and remanded the claims for action consistent with the directives in a Joint Motion for Partial Remand (JMPR). The Veteran did not contest the Board’s decision that denied: higher evaluations for service-connected anxiety prior to and from November 19, 2017; an effective date prior to February 24, 2011, for the grants of service connection for the left and right lower extremities; and an effective date prior to October 27, 2014 for the grant of service connection for anxiety, so these issues are dismissed. See Pederson v. McDonald, 27 Vet. App. 276, 285 (2015) (en banc). The Board’s decisions granting a 50 percent evaluation prior to November 19, 2017 for service-connected anxiety and an effective date of February 24, 2011, but no earlier, for the grants of service connection for the left and right lower extremities were not disturbed. Medrano v. Nicholson, 21 Vet. App. 165, 170

(2007) aff'd in part, dismissed in part sub nom. Medrano v. Shinseki, 332 F. App’x 625 (Fed. Cir. 2009).

Increased Rating

The Veteran is seeking increased disability ratings for his service-connected bilateral lower extremity (BLE) radiculopathy. During the February 2022 Board hearing, he testified that he should have been given a higher disability rating prior IN THE APPEAL OF

RICHARD A. GRUDIN

SS XXX XX 2431

Docket No. 18-25 333

3

to November 18, 2017 since he thinks he had above moderate radiculopathy back then. He also expressed that he could not drive a truck at that time and had to use a cane.

Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R.

§§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31

(1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s radiculopathy involving each lower extremity is rated as 10 percent disabling under DC 8520 from February 24, 2011 to November 18, 2017. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating requires moderate incomplete paralysis; a 40 percent rating requires moderately severe incomplete paralysis, and a 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent evaluation is warranted for complete paralysis; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or

(very rarely) lost. 38 C.F.R. § 4.124a.

IN THE APPEAL OF

RICHARD A. GRUDIN

SS XXX XX 2431

Docket No. 18-25 333

4

The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of 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. Id. See also Miller v. Shulkin, 28 Vet. App. 376, 380

(2017) (non-sensory manifestations are not necessarily rated at a higher level). The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 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, 4.124.

Because the terms in the diagnostic code are not defined, the Board is providing the required definitions. Here, mild incomplete paralysis exists where there are subjective symptoms only, or where there are objective sensory symptoms such as decreased sensation that are productive of minimal or no functional impairment. Moderate incomplete paralysis exists where there are objective sensory symptoms only that are productive of severe functional impairment, or abnormal reflexes or reduced muscle strength productive of substantial functional impairment. Moderately severe incomplete paralysis exists where there is abnormal reflexes or reduced muscle strength productive of severe functional impairment without marked muscle atrophy. Severe incomplete paralysis exists where there is severe impairment resulting from marked muscle atrophy and abnormal reflexes, with trophic changes.

Evidence relevant to the severity of the Veteran’s radiculopathy includes private treatment records which show his history of bilateral lower lumbar radiculopathy as early as 2008 but do not delve into the specifics of the disability. See July 2008 MRI report from Big Oak Radiology, Inc. In April 2009 the Veteran was seen for increased left lower extremity pain following an accident during spinning class in 2007 and a horse riding accident in 2008. He reported feeling daggers in his lateral thighs and a burning sensation in the posterior and anterior aspect of both thighs into the calves. He also reported occasional left leg numbness. The clinical impression was bilateral lower extremity pain that does not truly claudicate. IN THE APPEAL OF

RICHARD A. GRUDIN

SS XXX XX 2431

Docket No. 18-25 333

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Neurological examination showed motor strength was 5/5 in both lower extremities. Sensory examination revealed diminished sensation in the entire left lower extremity and deep tendon reflexes were 3+ in the knees and ankles bilaterally. Straight leg raising was negative bilaterally. The Veteran’s gait was normal, and he walked without aids.

During the neurological portion of a January 2014, VA back examination, the Veteran reported that he had a constant dull ache in the lower lumbar area that extended to the buttocks. The examiner noted that the Veteran had normal muscle strength in hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension bilaterally with no muscle atrophy; normal deep tendon reflexes in the knees and ankles; and normal sensation to light touch in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes, bilaterally. Straight leg raising test was negative and the Veteran did not have radicular signs or symptoms and did not use any assistive devices as a normal mode of locomotion. A March 2014 VA treatment record shows the Veteran reported mid lower back pain with numbness and sharpness that radiated to posterior knees and posterior lateral hips. The Veteran reported numbness and tingling in front of thighs. Examination revealed normal muscle strength but diminished sensation in the right lower extremity and positive straight leg raising test. The left lower extremity showed normal muscle strength and negative straight leg raising test. When examined by VA in August 2015, the Veteran reported that he had a pain level of nine out of ten daily in his low back pain with radiation to both buttocks and legs intermittently. Muscle strength testing was normal in hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension bilaterally with no muscle atrophy but deep tendon reflexes were hypoactive. Sensation to light touch was normal, but straight leg raising test results were positive in both legs. The examiner noted that the Veteran had radicular pain, specifically that he had intermittent mild bilateral lower extremity pain with no other signs or symptoms of radiculopathy. The examiner noted that the sciatic nerve was involved and that the Veteran had mild radiculopathy on both sides. The Veteran did not use any assistive devices as a normal mode of locomotion. IN THE APPEAL OF

RICHARD A. GRUDIN

SS XXX XX 2431

Docket No. 18-25 333

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The remaining records do not indicate a worsening in symptoms such as muscle weakness, atrophy, foot drop, trophic changes, or other limitations with respect to either lower extremity.

Applying the regulations to the facts in the case, the criteria for a rating higher than 10 percent are not met. Despite the intermittent objective findings of abnormal reflexes and sensory impairment, there is no evidence of substantial functional impairment related to his BLE radiculopathy, such as weakness, muscle atrophy, trophic changes, or gait changes, that would warrant a higher rating or demonstrate more than a mild degree of radiculopathy. In fact, the 2015 VA examiner specifically provided a diagnosis of only mild radiculopathy. In addition, use and control of the BLE are primarily intact and the Veteran does not require an assistive device to aid with walking. Given the evidence as outlined above, the Board finds that the record prior to November 18, 2017, does not demonstrate a disability picture that more closely approximates moderate or moderately severe incomplete paralysis of the sciatic nerve, and a higher rating is not warranted. The Board has also carefully considered the Veteran’s contentions in making this decision. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Although he is competent to describe his symptoms, he is not competent to identify a specific level of disability according to the appropriate diagnostic code, as this is a complex medical determination outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In evaluating a claim for an increased schedular rating, VA must weigh the Veteran’s statements against the factors as enumerated in the rating criteria discussed above, which in part, involves the examination of clinical data gathered by competent medical professionals. In this case the Veteran’s assertions are outweighed by the medical evidence of record.

Accordingly, the evidence is persuasively against the claims and there is no reasonable doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). IN THE APPEAL OF

RICHARD A. GRUDIN

SS XXX XX 2431

Docket No. 18-25 333

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Thomas H. O'Shay

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board J.R. Bryant

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. YOUR RIGHTS TO APPEAL OUR DECISION

The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a

"Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance:

• Appeal to the United States Court of Appeals for Veterans Claims (Court)

• File with the Board a motion for reconsideration of this decision

• File with the Board a motion to vacate this decision

• File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also:

• Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved.

How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims

625 Indiana Avenue, NW, Suite 900

Washington, DC 20004-2950

You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is 202-***-****.

To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office.

How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch

Board of Veterans' Appeals

P.O. Box 27063

Washington, DC 20038

VA FORM

DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE

Department of Veterans Affairs

Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a).

Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.)

If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, ad2s56@r.postjobfree.com, or 855-***-****.

Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2).

The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d).

VA FORM

DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED

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