Citation Nr: 18154805 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 12-25 049 DATE: December 3, 2018 ORDER A rating in excess of 20 percent for radiculopathy, left lower extremity is denied. A rating in excess of 20 percent for radiculopathy, right lower extremity is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran's left lower extremity radiculopathy has been shown to be manifested by no more than moderate radicular pain and numbness. 2. During the period on appeal, the Veteran's right lower extremity radiculopathy has been shown to be manifested by no more than moderate radicular pain and numbness. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent, for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2017). 2. The criteria for an initial rating of 40 percent, for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Navy from October 1987 to April 2001. This matter was last before the Board of Veterans’ Appeals (Board) in October 2017 when the Board denied the present claims. In May 2018, the matter was returned to the Board after a joint motion for partial remand from the United States Court of Appeals for Veterans Claims (Court). Increased Rating Lower extremity radiculopathy is rated according to Diagnostic Code 8520. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. A 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and 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. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term “incomplete paralysis” 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. 38 C.F.R. § 4.124a. The words “mild,” “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38C.F.R. §§4.10, 4.40, 4.45, 4.59. Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 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. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In February 2011, the Veteran was afforded a VA examination. The Veteran reported that he had constant and severe shooting pain down his left leg from his back. While he reported that he could walk for up to one mile or for 30 minutes, it was also noted that the Veteran used knee braces for both knees. The Veteran’s right knee osteoarthritis, left knee tendonitis and instability are all presently service connected. On clinical testing, the examiner noted that the Veteran’s bilateral muscle strength, fine motor control, and muscle tone were all “normal,” i.e., there was no loss of muscle strength, fine motor control and no evidence of atrophy or muscle wasting on either lower extremity. Similarly, sensory function “pinprick” testing for both the left and right lower extremities resulted in normal findings. There were no motor or sensory abnormalities found. An August 2012 VA treatment note, generated during regular care of the Veteran’s service-connected back disorder, indicates the Veteran then complained of radiating pain down his legs to his feet. He complained of numbness and that this symptom “comes and goes since 1997.” However, in a separate August 2012 note, the Veteran reported that his feet numbness was “unrelated,” and there was no motor weakness noted. In December 2012, the Veteran was afforded a VA spinal examination. However, radicular symptoms included shooting pain with tingling that radiated down his bilateral extremities. The examiner noted “mild” bilateral radicular pain that was characterized by intermittent pain and paresthesias and/or dysesthesias. During a December 2012 VA radicular nerves examination, the Veteran reported that he had “intermittent bilateral shooting pain with ‘tingling’ that radiate[d] down bilateral extremities.” However, muscle strength, ankle and foot movement and knee flexion testing of the lower extremities resulted in normal findings. There was no muscle atrophy. Deep tendon reflexes of both knees and both ankles were normal. Sensory testing of both thighs, both knees, both legs and ankles and both feet and toes all resulted in normal findings. Straight leg testing resulted in normal findings. VA clinical testing in August 2013 resulted in findings of no paresthesias and/or dysesthesias, no numbness, normal muscle strength, and normal bilateral knee and ankle movement. There was no evidence of muscle atrophy and sensory testing of the thighs, knees, lower legs and ankles and feet and toes all resulted in normal findings. The Veteran’s gait was reported as “normal.” While the Veteran reported having radicular pain, the examiner noted no pain was observed of either lower extremity at the time of the examination and the Veteran had intermittent “usually dull” pain. The examiner reported the Veteran had “no” other signs or symptoms of radiculopathy. During a VA examination in November 2013, clinical testing found no evidence of muscle atrophy and sensory testing of the thighs, knees, lower legs and ankles and feet and toes all resulted in normal findings. Reflex testing of the lower extremities resulted in normal findings. He again reported intermittent usually dull pain and “mild” paresthesias and/or dysesthesias. There was noted no numbness or other signs or symptoms of radiculopathy. In December 2013, the Veteran was afforded a VA medical addendum opinion. The examiner noted the Veteran’s radiculopathy involved the L4/L5/S1/S2/S3 nerve roots on both sides and was mild in severity. In his November 2014 hearing testimony, the Veteran indicated consistent back pain that radiated down to his legs; that comfortable walking distance was limited to about 100 meters and that he could only sit comfortably approximately 20 minutes. The Veteran testified that he experiences pain radiating down to his feet on both sides two or three times a week and, exacerbated when he remains seated for an extended period. In February 2016, the Veteran was afforded a VA examination. Clinical testing again found no evidence of muscle atrophy, and strength testing of the knees, ankles and toes all resulted in normal findings. Sensory examination of the lower leg and ankle and feet and toes resulted in decreased findings. However, the Veteran reported no pain of the right lower extremity, and moderate constant pain of his left lower extremity. The examiner indicated moderate radicular pain and numbness on the left side, and moderate paresthesias and/or dysesthesias on the right side. The examiner opined the overall severity of the Veteran’s radiculopathy was mild on both sides. The Veteran’s sciatic nerve symptoms have generally been described by examiners as primarily mild and not more than moderate. He has mild, bilateral shooting pain with a tingling sensation that radiates down his bilateral extremities and which radiates to both of his feet two to three times weekly when he is seated for an extended period. The Veteran has reported difficulty walking more than 100 meters and climbing stairs, but his knee disorders and his back disorders are service connected. As noted above, while the terms “mild,” “moderate” and “moderately severe” are not defined by regulation, evaluation under the relevant DC 8520 includes foot and knee function, lower extremity strength, and muscular tone as evidenced by the focal points requisite for an 80 percent rating. Here, the Veteran does not experience neurological impairment of either foot, such as foot dangles and drops or muscular impairment. Reiterating, to the extent that the Veteran has reported difficulty walking and other dysfunction, he has other lower extremity service-connected disorders. The preponderance of the evidence is therefore against the claim for an increased rating and the appeal will be denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. T. Emmart, Associate Counsel