Citation Nr: 18148461 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-36 393 DATE: November 8, 2018 ORDER The issue of entitlement to an increased evaluation for left L3 and L4 radiculopathy, to include muscle atrophy of the left lower extremity, currently evaluated as 40 percent disabling, is denied. FINDING OF FACT The medical evidence does not show that the Veteran's left L3 and L4 radiculopathy, to include muscle atrophy of the left lower extremity, results in severe incomplete paralysis, with marked muscular atrophy. CONCLUSION OF LAW The criteria for an evaluation in excess of 40 percent for left L3 and L4 radiculopathy, to include muscle atrophy of the left lower extremity, have not been satisfied. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1992 to May 1996. This case is before the Board of Veterans’ Appeals (BVA or Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. That rating decision granted service connection for left calf and thigh atrophy, evaluated as noncompensable, effective February 10, 2015. A December 2016 rating decision included the left calf and thigh atrophy in the evaluation of the already service-connected left L3 and L4 radiculopathy and assigned a 40 percent rating, effective March 21, 2012. Service connection for the left calf and thigh atrophy had initially been granted as related to the Veteran’s service-connected left ankle disability. The December 2016 examination considered the report of an October 2016 VA examination which included the examiner’s opinion that the muscle atrophy affecting both the left thigh and left calf is at least as likely as not proximately due to or the result of the service-connected L3 and L4 radiculopathy. The examiner stated that although decreased use of the left leg due to left ankle surgeries may contribute to the Veteran’s muscle atrophy somewhat, the degree of muscle atrophy is more likely neurologic in cause, attributable to the left lumbar radiculopathy. Given that opinion, the RO determined that the muscle atrophy in the left lower extremity would now be contemplated within the assigned evaluation for your left L3 and L4 radiculopathy. The Veteran asserts that the combined disability evaluation should be 60 percent disabling. In this regard, disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. If there is an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt as to the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s disability is evaluated under Diagnostic Code 8520 for paralysis of the sciatic nerve. Under this provision, moderately severe incomplete paralysis warrants a 40 percent evaluation and severe incomplete paralysis, with marked muscular atrophy, warrants a 60 percent disability evaluation. 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 issue before the Board is whether the evidence shows that the Veteran’s left L3 and L4 radiculopathy, to include muscle atrophy of the left lower extremity, results in severe incomplete paralysis, with marked muscular atrophy. The Board finds that the preponderance of the evidence shows that it does not, and thus a 60 percent evaluation is not warranted. Diagnostic Code 8520. VA medical treatment records dated during the appeal period reflect diagnoses of lumbar radiculopathy. However, the records are negative for any findings of severe incomplete paralysis, with marked muscular atrophy, warranting an increased evaluation under Diagnostic Code 8520. The report of a March 2012 VA Ankle DBQ, that also addresses the Veteran's spine and back, relates a pertinent diagnosis of no left or right sciatica or femoral nerve radiculopathy at this time. A July 2013 VA Peripheral Nerves DBQ provides a diagnosis of L3-L4 radiculopathy. The Veteran had moderate intermittent left lower extremity pain, no left lower extremity paresthesias and/or dysesthesias, and no left lower extremity numbness. The report describes the Veteran’s left incomplete paralysis of the sciatic nerve as mild. An April 2015 Muscle Injuries DBQ provides a diagnosis of muscle atrophy of the left lower extremity. The affected muscles were left Group XI. The Veteran's left calf measured 44 cm, versus 48 cm on the right, and the Veteran's left thigh measured 49.5 cm, versus 51 cm on the right. The report of an October 2016 Spine DBQ relates that the Veteran’s radiculopathy resulted in mild left lower extremity intermittent pain, mild left lower extremity paresthesias and/or dysesthesias, and no left lower extremity numbness. The report describes the severity of the Veteran's left radiculopathy as moderate. The Veteran denied current flare-ups of the thoracolumbar spine. As the foregoing records do not include evidence of severe left incomplete paralysis of the sciatic nerve, with marked muscular atrophy, an evaluation in excess of 40 percent for left L3 and L4 radiculopathy, to include muscle atrophy of the left lower extremity, is denied. The Board has considered the Veteran’s general assertion that his disability is worse than contemplated by the current 40 percent evaluation. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of the disorders according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran’s radiculopathy has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran’s subjective complaints of increased symptomatology. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Davitian