Citation Nr: 1822506 Decision Date: 04/13/18 Archive Date: 04/25/18 DOCKET NO. 10-00 286A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for left lower extremity radiculopathy. REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at an August 2013 hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. This case was subsequently remanded in July 2014 and August 2015. The August 2015 remand addressed four other issues. Among them, a total disability rating claim that had been certified for appeal was subsequently granted following the remand, in November 2017. The remaining three issues were remanded for issuance of a Statement of the Case; this has been accomplished, and appeals have been perfected for those issues, but these appeals have not been certified to the Board to date. They will be addressed in a forthcoming Board action, presumably following certification if otherwise in order. In addition, the Board notes that the Veteran's attorney submitted Freedom of Information Act (FOIA) requests in September 2015, March 2017, and June 2017 for a copy of the Veteran's entire claims file. On December 7, 2017, VA completed action on the FOIA requests. The Veteran's attorney has not requested an extension of time to review the file from the date of fulfillment of the FOIA request. Furthermore, as it has been more than one month since the VA fulfilled the FOIA request and the Veteran has not filed additional evidence and/or legal argument in response, the Board is proceeding with the adjudication of the appeal. FINDING OF FACT During the period on appeal, the Veteran's radiculopathy of the left lower extremity was productive of no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for radiculopathy of the left lower extremity, sciatic nerve, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.124(a), DC 8520 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R., Part 4 (2017). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.7 provides that, 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). But where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Therefore, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Diseases affecting the nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a. Paralysis of the sciatic nerve, such as that caused by sciatica, is rated under Diagnostic Code 8520. 38 C.F.R. § 4.124a. Under this diagnostic code, 10, 20, and 40 percent ratings are assigned when incomplete paralysis of the sciatic nerve is mild, moderate, or moderately severe. 38 C.F.R. § 4.124a, DC 8520. A 60 percent rating is applicable if the incomplete paralysis is severe with marked muscle atrophy. An 80 percent rating is available for complete paralysis evidence by the foot dangling and dropping, no possible active movement below the knee, and weakened or lost flexion of the knee. Id. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. Id. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be 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. Instead, 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. In this case, the Veteran is in receipt of a 20 percent rating for sciatic nerve involvement of the left lower extremity, effective May 3, 2006. During the pendency of the appeal, the principal medical evidence material to the claim is contained in the reports of VA examinations May 2015 and September 2017. The remainder of the medical treatment records contain no evidence materially inconsistent with the findings of those examinations as they relate to the condition of the Veteran's service-connected left lower extremity radiculopathy of the sciatic nerve. At no time during the period on appeal has the evidence demonstrated moderately severe incomplete paralysis of the left sciatic nerve, the next higher available rating, nor has severe incomplete paralysis or complete paralysis been demonstrated by the evidence of record. Throughout the relevant time period, the Veteran had normal muscle strength and no atrophy. Deep tendon reflexes of the left knee and ankle were normal (+2). Although the Veteran indicated that he experienced mild constant pain, and moderate intermittent pain, paresthesias and/or dysesthesias, and numbness during the September 2017 VA examination, such neurological impairment is wholly sensory. See 38 C.F.R. § 4.124a. Furthermore, VA examiners assessed the Veteran's radiculopathy as moderate incomplete paralysis. See May 2015 and September 2017 VA Examinations. As such, the Veteran is already receiving the highest possible rating based on his symptomatology for wholly sensory nerve impairment. Accordingly, a higher disability rating for the left lower extremity sciatic nerve is unwarranted. In making its determination, the Board has also considered the Veteran's statements, made in support of his claimed for increased disability rating. The Board notes that although the Veteran asserts increased pain and numbness, his reported symptoms have been attributed to his service-connected lumbar spine degenerative disease throughout the pendency of his appeal. Likewise, while the Veteran is competent to report on his personal knowledge of his symptoms, and his assertions are accepted as credible, he is not competent to provide a probative opinion on the severity of such symptoms in relation to the applicable rating criteria and in conjunction with which service-connected or nonservice-connected disability causes such symptoms. Such is a medically complex matter that requires particular expertise in clinical neuropathy, which he simply does not possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Furthermore, the VA examiners who conducted the relevant VA examinations, are competent to provide probative opinions, took into consideration all of the Veteran's subjective complaints, his medical history, and the results of the objective neurological testing and examinations in determining the overall severity of the manifestations attributed to his service-connected sciatic nerve of the left lower extremity. The Board finds the VA examiners' assessments of the severity of the Veteran's disability more probative than his assertions, as they provided objective findings and rationale for their opinions. For the foregoing reasons, the preponderance of the evidence is against increasing the Veteran's disability rating for the sciatic nerve of the left lower extremity. This claim is accordingly denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to a disability rating in excess of 20 percent left lower extremity for radiculopathy is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs