Citation Nr: 18141693 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-27 657 DATE: October 11, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for radiculopathy, right lower extremity, prior to December 28, 2017 is denied. Entitlement to a rating of 20 percent for radiculopathy, right lower extremity, from December 28, 2017 is granted. FINDINGS OF FACT 1. Prior to December 28, 2017, the Veteran’s service-connected right lower extremity radiculopathy was manifested by mild incomplete paralysis; moderate, moderately severe or severe incomplete paralysis, or complete paralysis is not shown. 2. From December 28, 2017, the Veteran’s service-connected right lower extremity radiculopathy was manifested by moderate incomplete paralysis; moderately severe or severe incomplete paralysis, or complete paralysis is not shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy, prior to December 28, 2017, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, DC 8520. 2. The criteria for an increased evaluation to 20 percent for right lower extremity radiculopathy, from December 28, 2017, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1994 to December 2001. 1. Entitlement to an Initial Rating in excess of 10 Percent for Radiculopathy, Right Lower Extremity, prior to December 28, 2017 Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on 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 apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings,” regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). That is to say, the Board must consider whether there have been times when service-connected disabilities have been more severe than at others, and rate them accordingly. In this case, staged ratings are appropriate and will be explained in further detail below. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2016). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The Veteran is in receipt of a ten percent disability rating for radiculopathy of the right lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520 for mild incomplete paralysis of the sciatic nerve. The Veteran contends that her current rating does not reflect the severity of her disability. Disability ratings for diseases of the peripheral nerves under DC 8520 are based on relative loss of function of the involved extremity with attention to the site and character of the injury, the relative impairment of motor function, trophic changes, or sensory disturbances. See 38 C.F.R. § 4.120. An 80 percent rating is assignable for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. A 60 percent rating may be assigned for incomplete paralysis of the sciatic nerve which is severe, with marked muscular atrophy. A 40 percent rating is assignable when moderately severe. A 20 percent rating may be assigned when moderate. A 10 percent rating may be assigned when mild. 38 C.F.R. § 4.124a, DC 8520. The Board observes that the words “mild,” “moderate” and “severe” as used in the various DCs 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. The Veteran underwent a VA examination in June 2014. The examiner found that the Veteran’s right lower extremity radiculopathy caused intermittent, mild pain. Paresthesia and/or dysesthesias, and numbness were not present, and constant pain was not evident. No other signs or symptoms of radiculopathy were found during the examination. The examiner determined that the Veteran had mild right lower extremity radiculopathy. A December 2014 rating decision by the RO awarded service connection for right lower extremity radiculopathy, evaluated as 10 percent disabling. Her overall combined disability rating remained at 60 percent. On a February 2015 Notice of Disagreement (NOD), the Veteran stated that she disagreed with the fact that she did not receive a financial increase. A February 2015 VA treatment note reflected that the Veteran reported back pain which radiated to her right leg and was better with stretching. There is no other medical evidence pertaining to the Veteran’s radiculopathy prior to December 28, 2017 suggesting anything but mild right lower extremity radiculopathy. Here, throughout this period, the evidence of record reveals mild radiculopathy. This evidence warrants no more than the currently assigned 10 percent disability rating under DC 8520. The Board has considered the guidance contained in 38 C.F.R. §§ 4.120, 4.213, 4.124, and 4.124a. However, here, the primary manifestation is sensory. Neither the Veteran nor the examiner described either moderate, moderately severe or severe incomplete paralysis, or complete paralysis of the sciatic nerve of either lower extremity. There is no evidence at any time of trophic changes, muscular atrophy, of foot dangle, or of foot drop; and there is still movement of the Veteran’s muscles below the knee. Hence, a disability rating greater than 10 percent is not warranted at any time. No more than sensory deficits have been reported. For the foregoing reasons, the Board finds that the evidence is against the award of an initial disability rating in excess of 10 percent prior to December 28, 2017. The preponderance of the evidence is against the claims for higher ratings. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a Rating in excess of 10 Percent for Radiculopathy, Right Lower Extremity, from December 28, 2017 The Veteran underwent an additional VA examination on December 28, 2017. The examiner found that the Veteran’s right lower extremity radiculopathy caused intermittent and constant moderate pain, as well as moderate paresthesia and/or dysesthesias, and moderate numbness. No other signs or symptoms of radiculopathy were found during the examination. The examiner determined that the Veteran had moderate right lower extremity radiculopathy. There is no other medical evidence pertaining to the Veteran’s radiculopathy from December 28, 2017 suggesting anything but moderate right lower extremity radiculopathy. In light of the criteria and facts set out above, the Board finds that an increased rating to 20 percent for the Veteran’s service-connected right lower extremity radiculopathy is warranted. That is, the degree of incomplete paralysis shown is assessed as being moderate in degree. Following an examination of the Veteran, the December 2017 VA examiner determined that the Veteran’s right lower extremity radiculopathy was moderate. With respect to a higher than 20 percent rating, the Board finds that such criteria are not met because the findings do not approximate the criteria for moderately severe impairment. The Board has determined that staged ratings are appropriate in the present case. The disabilities being evaluated appeared to significantly change at some point during the appeal period, as reflected by the findings in the December 2017 VA examination in comparison with the Veteran’s June 2014 VA examination. Therefore, a staged rating is necessary. The Board has determined that the date of the December 2017 VA examination is the most appropriate time in which to increase the Veteran’s rating to 20 percent disabling, because there is no other evidence, medical or lay, reflecting an increase in severity until that time. Accordingly, the Board finds that from December 28, 2017, a rating of 20 percent for the Veteran’s service-connected right lower extremity radiculopathy is warranted. See 38 C.F.R. § 4.124a, DC 8520. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel