Citation Nr: 18152097 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-42 073 DATE: November 20, 2018 ORDER Entitlement to an initial disability rating higher than 10 percent for service-connected radiculopathy, right lower extremity, is denied. FINDING OF FACT The Veteran's service-connected radiculopathy, right lower extremity, is manifest by mild paralysis of the anterior crural nerve. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating higher than 10 percent for service-connected radiculopathy, right lower extremity, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8526 (2017) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1975 to June 1978, October 1982 to April 1992, October 2010 to November 2011, January 2012 to March 2012, and June 2012 to September 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in his VA Form 9, the Veteran stated he believed his back rating was incomplete as it did not address his neck issue. However, in a subsequent unappealed rating decision, the Veteran was awarded service connection for his cervical strain with degenerative arthritis. As such, the issue of the Veteran’s neck condition is not properly before the Board and will not be addressed. Increased Rating Radiculopathy Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever 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). Service connection for radiculopathy, right lower extremity was awarded by way of an April 2015 rating decision. The Veteran was assigned a 10 percent rating. The Veteran's service-connected radiculopathy is rated under Diagnostic Code 8526, which pertains to paralysis of the anterior crural nerve. Under this diagnostic code, a 10 percent rating is assigned for mild incomplete paralysis. A 20 percent rating is for moderate incomplete paralysis. A 30 percent rating is for severe incomplete paralysis. A 40 percent rating is for complete paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a (2017). The report of the April 2015 VA examiner indicates that the Veteran has mild intermittent pain in the right lower extremity, mild paresthesias or dysesthesias in the right lower extremity, mild numbness in the right lower extremity, and no decrease in muscle strength in any area of the lower extremities. Further the examiner noted decreased sensitivity to touch in upper anterior thigh and thigh/knee of the right lower extremity. No radicular pain was noted in the left lower extremity and constant pain was not noted in either extremity. No decrease in sensitivity to touch was noted in the left lower extremity. The VA examiner concluded that the Veteran's overall symptoms more closely resembled mild radiculopathy in the right lower extremity. The Veteran contends that he was not provided a thorough examination. The Veteran's claim is that the examiner had not thoroughly reviewed the claims file and did not have his MRI. However, the Veteran specifically states that he does not dispute the competence of the doctor who performed the examination. While the Veteran has concerns over the thoroughness of the examination, especially the attention paid to how the Veteran's injuries affect his current and future employment, the Board finds that the examination was thorough and competent. The Board notes that despite the Veteran's concerns, he was granted service connection for his back disability and secondary radiculopathy. The Board further notes that the purpose of the examination in terms of assigning a rating is to identify the limitations placed on the veteran by his disability. In this case, there is no evidence that the examiner was not qualified to perform the examination nor that he failed to perform any portion of the physical testing. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel