Citation Nr: 1752970 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-29 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a compensable initial disability rating prior to September 3, 2015, and to an initial rating higher than 10 percent beginning September 3, 2015, for right lower extremity radiculopathy. 2. Entitlement to a compensable initial rating prior to September 3, 2015, and to an initial rating higher than 10 percent beginning September 3, 2015, for left lower extremity radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1997 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the October 2012 rating decision on appeal, the RO granted service connection for a lower back disability with associated bilateral lower extremity radiculopathy. The RO assigned a compensable initial rating for the Veteran's lower back disability but declined to assign separate ratings for his lower extremity disabilities. The Veteran perfected an appeal of the decision. In July 2015, the Board granted an increased, staged initial rating for the Veteran's lower back disability and remanded his claims for separate initial ratings for right and left lower extremity radiculopathy for additional development. The claims are now again before the Board for further appellate consideration. In a May 2016 rating decision, the RO assigned 10 percent initial ratings for each of the Veteran's lower extremities, effective September 3, 2015. The Veteran has not indicated he is satisfied with the ratings assigned. As such, his claims remain on appeal and the Board has recharacterized the claims in accordance with the foregoing procedural history, as reflected on the title page. The record before the Board consists of electronic records within the Veterans Benefits Management System. FINDINGS OF FACT 1. For the entire period of the claim, the Veteran's right lower extremity radiculopathy has manifested as moderate incomplete paralysis of the sciatic nerve; it has not manifested as moderately severe incomplete paralysis, severe incomplete paralysis with marked muscular atrophy, or complete paralysis. 2. For the entire period of the claim, the Veteran's left lower extremity radiculopathy has manifested as moderate incomplete paralysis of the sciatic nerve; it has not manifested as moderately severe incomplete paralysis, severe incomplete paralysis with marked muscular atrophy, or complete paralysis. CONCLUSIONS OF LAW 1. For the entire period of the claim, the criteria for a 20 percent initial rating, but not higher, for right lower extremity radiculopathy, have been met, from December 13, 2010. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code (DC) 8520 (2017). 2. For the entire period of the claim, the criteria for a 20 percent initial rating, but not higher, for left lower extremity radiculopathy, have been met, from December 13, 2010. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 4.7, 4.124a, DC 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. § 5103, 5103A (West 2015), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that the Veteran's service treatment records (STRs), VA treatment records, and private treatment records have been obtained, to the extent they have been identified by the Veteran. The Veteran has also been afforded appropriate VA examinations in relation to his claims. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to further substantiate his claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claims. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 3.321 (a), 4.1 (2017). 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. 38 C.F.R. § 4.7 (2017). In initial rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background and Analysis In accordance with 38 C.F.R. § 4.1, 4.2, 4.41, 4.42 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability or disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability or disabilities under review. As an initial matter, the Board notes the record includes conflicting evidence as to which nerve's impairment is the cause of the Veteran's bilateral lower extremity radiculopathy. Specifically, in a March 2011 VA examination report, a VA examiner stated that the "most likely" impacted nerve was the superficial peroneal nerve. However, a September 2010 treatment note indicated the sciatic nerve was impacted, and in March 2014, a VA examiner indicated the sciatic nerve was affected and all other nerves, to include the superficial peroneal, were normal. In its July 2015 remand, in relevant part, the Board requested that a VA examiner provide clarity on this issue, and in August 2015 and August 2017 reports, VA examiners indicated the Veteran's sciatic nerve was affected, and further indicated all other nerves were normal. Based on the foregoing, the Board has determined that impairment of the Veteran's sciatic nerve, and no other nerve, is the cause of his bilateral lower extremity radiculopathy. In this regard, the Board notes that four medical opinions indicate only the sciatic nerve is impacted, whereas only one opinion indicates the superficial peroneal nerve is impacted, and the latter opinion stated only that this nerve was "most likely" impacted, but made no definitive determination. Accordingly, the Veteran's right and left lower extremity radiculopathy are properly rated under 38 C.F.R. § 4.124a, DC 8520, which is applicable to paralysis of the sciatic nerve. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve with symptoms such as: the foot dangles and drops, no active movement possible of muscles below the knee, and 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 given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a (2017). The Board observes the words "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). In this case, a December 2010 treatment note shows the Veteran reported back pain with shooting pain into the left anterior thigh as well as weakness, numbness, and tingling in both lower extremities. In May 2011 the Veteran reported "electrical pain" beginning in his left buttock and radiating to his left posterior calf that was a seven on a ten-point scale, as well as numbness and tingling. The Veteran was also afforded a VA examination in May 2011, at which time he reported lower back pain that travelled up and down his legs. The examiner did not provide an assessment of the severity of the lower extremity symptoms. Treatment notes dated from June 2011 to September 2012 show the Veteran continued to report bilateral lower extremity neurological symptoms, to include pain, weakness, numbness, and tingling. The Veteran's reports of his lower extremity pain fluctuated between three and seven out of ten on the left side and four and five out of ten on the right side during this period. The Veteran was afforded a VA thoracolumbar spine examination in March 2014. The examiner noted the Veteran's reports of an inability to sleep due to pain, which he reported was an eight out of ten. The examiner indicated the Veteran had moderate constant pain, moderate paresthesia, and moderate numbness in both lower extremities, and that the overall severity of the Veteran's radiculopathy was moderate in both lower extremities. The Veteran was afforded an additional VA examination in August 2015. The examiner indicated the Veteran had mild constant pain, mild paresthesia, and mild numbness in both lower extremities. The Veteran was afforded an additional VA thoracolumbar spine examination in August 2017. The examiner noted the Veteran's reports of aching, stabbing, burning lower back pain that was an eight out of ten and that radiated to both legs with tingling and numbness. The examiner indicated the Veteran had mild intermittent pain and mild paresthesia in the right lower extremity, and moderate intermittent pain and moderate paresthesia in the left lower extremity. Overall, the examiner indicated the severity of the Veteran's lower extremity radiculopathy was mild on the right and moderate on the left. The Board has carefully reviewed the foregoing, and after resolving all reasonable doubt in favor of the Veteran, has determined a 20 percent initial rating is warranted for radiculopathy in each of the Veteran's lower extremities throughout the period of the claims. This finding is supported under DC 8520 by the March 2014 VA examiner's indication of "moderate" symptoms in each lower extremity. However, upon a careful review of the entire record, the Board has determined initial ratings higher than 20 percent are not warranted for either extremity. In this regard, the Board notes that while the Veteran has reported significant neurological symptoms in both lower extremities, to include pain, weakness, numbness, and tingling, he has been evaluated by VA examiners on four occasions, and none have described his radiculopathy as moderately severe or severe in either extremity. The Board has also carefully reviewed the Veteran's VA and private outpatient treatment notes, none of which describe the Veteran's symptoms as moderately severe or severe. Instead, again, on each occasion where the issue of the severity of the Veteran's bilateral lower extremity radiculopathy was placed before a medical expert, even after consideration of the Veteran's subjective reports, the experts determined the condition was either mild or moderate. In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine, and has applied the doctrine where indicated. ORDER The Board having determined a 20 percent initial rating is warranted for the Veteran's right lower extremity radiculopathy from December 13, 2010, the benefit sought on appeal is granted to this extent, subject to the criteria applicable to the payment of monetary benefits. The Board having determined a 20 percent initial rating is warranted for the Veteran's left lower extremity radiculopathy from December 13, 2010, the benefit sought on appeal is granted to this extent, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs