Citation Nr: 1325891 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-20 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to compensable ratings for radiculitis of the bilateral lower extremities. ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1997 to July 2001. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The Veteran experiences mild radiculitis, with symptoms of pain, numbness, tingling of the bilateral lower extremities, and reduced reflex responses. CONCLUSION OF LAW The criteria for separate 10 percent ratings for mild radiculitis of the bilateral lower extremities have been met. 38 U.S.C.A. §§ 1155, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.40, 4.124(a), Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 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; see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). For paralysis of the sciatic nerve, 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. Complete paralysis, where the foot dangles and drops, and no active movement is possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 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 to partial regeneration. 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, Diagnostic Code 8520 The Veteran has consistently provided competent and credible lay evidence that he experiences symptoms of radiculitis. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a Veteran is competent to report on that of which he or she has personal knowledge). In his June 2010 claim, he indicated that he suffered from "numbness, tingling and pain in the lower extremities." In a July 2011 statement, he informed VA that although his symptoms wax and wane, he regularly experienced days of numbness and pain that makes it difficult to walk. At his November 2010 VA examination, the Veteran reported pain and paresthesia radiating from his lower back to both feet and ankles. On physical examination, his knee jerk reflexes were hypoactive, each measured at 1+, and his ankle jerk reflexes were absent. Sensory examination and motor examination were normal. The examiner diagnosed radiculitis, manifested by symptoms of intermittent lower extremity pain and paresthesia. Based on the medical and lay evidence of record, it is apparent that the Veteran experiences mild radiculopathy of the bilateral extremities. His symptoms are not constant, but the intermittent pain, numbness, and tingling, considered in conjunction with the physical findings of reduced knee jerk, absent ankle jerk, and the normal results of the sensory and motor examinations, more closely resemble the criteria for 10 percent ratings under Diagnostic Code 8520 than a noncompensable rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Therefore, the Board finds that the evidence is at least in equipoise that the Veteran meets the criteria for separate compensable 10 percent ratings for radiculitis of the bilateral lower extremities. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). No higher evaluation, however, is warranted. In the Veteran's January 2011 notice of disagreement, he indicated that his appeal was specifically to obtain 10 percent ratings for each of his lower extremities, and that if granted such ratings, he "would consider [his appeal] adequately resolved." In a July 2011 submission, the Veteran stated that the disability did "not rise to the level of severe (60%), moderately severe (40%), or moderate (20%)" under the criteria found at Diagnostic Code 8520. The Veteran also noted that "[i]f granted, a 10 percent evaluation for each extremity would completely satisfy my appeal." The Board has considered whether the Veteran's claim warrants extraschedular consideration. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the rating criteria provide for evaluations for various manifestations of incomplete paralysis, similar to what the Veteran experiences: numbness, sensory difficulties, weakness, and pain. Additionally, evidence does not reflect that the Veteran has required hospitalization due to his disability or that it has caused him to miss time from work. Thus, there are no exceptional or unusual factors with regard to the Veteran's radiculitis disability that would warrant extraschedular consideration of his claim. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Likewise, as the evidence does not suggest that the Veteran's service-connected disabilities have caused him to be unemployable, consideration of a total disability due to individual unemployability is not warranted in this case. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER Entitlement to a 10 percent rating, and no higher, for radiculitis of the left lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a 10 percent rating, and no higher, for radiculitis of the right lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs