Citation Nr: 19145158 Decision Date: 06/11/19 Archive Date: 06/11/19 DOCKET NO. 13-33 746A DATE: June 11, 2019 ORDER Entitlement to an initial disability rating of 20 percent for right lower extremity radiculopathy is granted. FINDING OF FACT Veteran’s right lower extremity radiculopathy manifested as moderate incomplete paralysis of the external popliteal nerve during the entire appeal period. CONCLUSION OF LAW The criteria are met for a 20 percent disability rating for right lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8521. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2004 to June 2008. This matter comes before the Board on remand from the United States Court of Appeals for Veterans Claims (CAVC). The case was originally before the Board on appeal from a May 2012 rating decision. In August 2016, the Veteran testified before the undersigned Veterans Law Judge at a live videoconference hearing; a transcript of the hearing is of record. The December 2017 Board decision denied an initial rating in excess of 10 percent for right lower extremity radiculopathy and remanded the rest of the claims on appeal. The Veteran appealed the Board’s decision to the CAVC. In August 2018, the CAVC issued an order vacating the Board’s December 2017 decision with respect (only) to the issue listed above and remanded the matter to the Board for further action consistent with an August 2018 Joint Motion for Partial Remand by the parties. The remaining issues on appeal were remanded to the RO for development, have not been recertified, and are, therefore, not before the Board at this time. The Board acknowledges the Veteran’s attorney requested that the Board consider Veteran’s entitlement to TDIU as part and parcel of his claim for an increased rating for right lower extremity radiculopathy. However, the evidence of record shows ongoing development by the RO is essential before entitlement to a TDIU can be adjudicated, and this development is currently being conducted, as that matter was previously remanded. Initial disability rating higher than 10 percent for right lower extremity radiculopathy is granted The Veteran has appealed for a higher initial rating for his right lower extremity radiculopathy. It is currently rated as 10 percent disabling under DC 8521, which pertains to the external popliteal nerve. 38 C.F.R. § 4.124a. Under this diagnostic code, mild incomplete paralysis warrants a 10 percent rating. Moderate incomplete paralysis warrants a 20 percent rating. Severe incomplete paralysis warrants a 30 percent rating. Complete paralysis warrants a 40 percent rating. A note prior to the rating criteria pertaining to diseases of the peripheral nerves, which contains DC 8521, explains that 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 mild, or at the most, the moderate degree. Id. Disability ratings with respect to neurological conditions are ordinarily rated in proportion to the impairment of motor, sensory or mental function. 38 C.F.R. § 4.120. In evaluating peripheral nerve injuries, attention therefore is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. Id. Special consideration is given to complete or partial loss of use of one or more extremities. 38 C.F.R. § 4.124a. The Veteran underwent a VA examination in January 2012 where the VA examiner indicated radiculopathy of the right lower extremity. The Veteran endorsed mild constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of the right lower extremity. The examiner indicated that there was mild radiculopathy of the of the right femoral nerve. At a June 2016 VA examination the Veteran endorsed moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the lower extremities bilaterally. The Veteran’s muscle strength testing was all normal and there was no muscle atrophy. Deep tendon reflex testing showed normal reflexes, except for the ankles bilaterally, which showed hypoactive reflexes. Sensory testing showed decreased sensitivity in the foot and toes bilaterally. The Veteran’s right lower extremity nerves were all normal and incomplete paralysis was not shown. The Board finds that a higher initial rating is warranted, and that the evidence shows that his right lower extremity radiculopathy is moderate throughout the appeal period. The January 2012 VA examination showed normal senses, normal reflexes, and normal muscle strength. The Veteran had mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness. This evidence, by itself, shows his right lower extremity radiculopathy was initially mild. However, VA treatment records throughout the appeal, and shortly after the January 2012 VA examination reflect consistent complaints of moderate radiating leg pain and occasional numbness. Accordingly, a 20 percent disability rating for the right lower extremity is warranted from November 10, 2011. The evidence shows during the majority of the appeal period the Veteran had moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the right lower extremity. The January 2012 VA examination showed milder symptoms, but VA treatment records from 2012 and 2013 show the Veteran’s lower right extremity radiculopathy began to worsen and more closely approximated the moderate symptoms contemplated by the 20 percent disability rating. The June 2016 VA examination showed continued moderate pain, but also showed a hypoactive right ankle reflex and decreased sensitivity in the right foot and toes. The Board finds that Veteran’s right lower extremity radiculopathy continued to approximate moderate severity and a 20 percent rating continues to be appropriate. The Board has considered the Veteran’s statements and testimony regarding the severity of his right lower extremity radiculopathy. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability is more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. However, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Board does not find that Veteran’s right lower extremity radiculopathy has been severe at any time during the appeal period. His muscle strength has always been normal. While his ankle reflex has decreased, this is the only non-sensory symptom. His right ankle reflex is, at worst, hypoactive, and not absent. Since this is the only non-sensory involvement, the Board does not find this symptom serious enough to warrant a 30 percent rating for severe. Accordingly, the Board finds the evidence shows the Veteran’s right lower extremity radiculopathy most closely approximates a moderate level of incomplete paralysis. 38 C.F.R. § 4.124a, DC 8521. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. St. Laurent The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.