Citation Nr: 1754824 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-06 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for radiculopathy of the right lower extremity. 2. Entitlement to an increased rating in excess of 10 percent for radiculopathy of the left lower extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Husain, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1976 to December 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, VA. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran's right lower extremity radiculopathy has not been manifested by symptomatology more nearly approximating moderate incomplete paralysis of the sciatic nerve. 2. For the entire rating period on appeal, the Veteran's left lower extremity radiculopathy has not been manifested by symptomatology more nearly approximating moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for radiculopathy of right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.124a, DC 8520 (2017). 2. The criteria for an increased rating in excess of 10 percent for radiculopathy of left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.124a, DC 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C.A § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. II. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14 (2017). Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id. 38 C.F.R. § 4.124a, DC 8520 provides the rating criteria for evaluation of paralysis of the sciatic nerve. Under this provision, mild incomplete paralysis warrants a 10 percent disability evaluation, moderate incomplete paralysis warrants a 20 percent disability evaluation; moderately severe incomplete paralysis warrants a 40 percent evaluation; and, severe, with marked muscular atrophy, incomplete paralysis warrants a 60 percent disability evaluation. An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee, with flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis," with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. In rating peripheral nerve disability, neuritis-characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating-is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. The words "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, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran received a private medical examination on December 14, 2009. The examiner found no atrophy in the lower extremities. The examiner also reported that sensory and reflex functions were normal. The Veteran submitted a claim for increase for these disabilities in September 2012. She received a VA examination in May 2013. The examiner noted that the Veteran's lower extremities had no muscle atrophy. The examiner found normal results in the reflex and sensory examinations. The examiner found no constant or excruciating pain in the lower extremities, but did find moderate intermittent pain and mild paresthesias and/or dysesthesias. The examiner found that there was no numbness in the lower extremities. The examiner noted involvement of the sciatic nerve. The examiner indicated that the severity of the radiculopathy was moderate on both sides. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for radiculopathy of the right and left lower extremities. In the May 2013 VA examination report, the examiner checked "None" for both constant pain and numbness in the lower extremities, checked mild for paresthesias and/or dysesthesias, and checked "moderate" for intermittent pain. A 20 percent disability rating contemplates moderate, incomplete paralysis. In this case, although the examiner checked the box that the Veteran's radiculopathy was moderate, the Board finds that the clinical findings do not support the moderate finding. While intermittent pain was found to be moderate, there was no constant pain or numbness, and paresthesias and/or dysethesias were mild. Additionally, the examiner found that the Veteran had normal muscle strength in the lower extremities, no muscular atrophy, and normal reflex and sensory examinations. Further, in comparing the December 2009 private medical examination and the May 2013 VA examination the preponderance of the evidence does not support that the Veteran's symptoms have worsened. The Board finds the Veteran's documented symptomatology to not more nearly approximate the criteria for a 20 percent disability rating for the left and right lower extremities. See 38 C.F.R. § 4.12a, DC 8520. Thus, a rating in excess for each lower extremity is not warranted. To the extent that the Board is denying entitlement to a disability rating in excess of 10 percent, the Board notes specifically that the Veteran's reports of paresthesias, intermittent pain, and a rating of moderate severity by the examiner, have been considered in evaluating the Veteran's neurological manifestations. See 38 C.F.R. § 4.6 (Board must evaluate all of the evidence, to the end that its decisions are "equitable and just"). In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for an increased rating in excess of 10 percent for radiculopathy of the right and left lower extremities. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to an increased rating in excess of 10 percent for radiculopathy of the right lower extremity is denied. Entitlement to an increased rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs