Citation Nr: 20002402 Decision Date: 01/14/20 Archive Date: 01/10/20 DOCKET NO. 19-03 435 DATE: January 14, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for the service-connected sciatic radiculopathy of the right lower extremity is denied. Entitlement to an initial rating in excess of 10 percent for the service-connected sciatic radiculopathy of the left lower extremity is denied. Entitlement to an effective date earlier than April 17, 2017 for the award of service connection for sciatic radiculopathy of the right lower extremity is denied. Entitlement to an effective date earlier than April 17, 2017 for the award of service connection for sciatic radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. For the entire appeal period, the evidence demonstrates that the Veteran’s sciatic radiculopathy of the right lower extremity has manifested impairment approximating no more than mild incomplete paralysis. 2. For the entire appeal period, the evidence demonstrates that the Veteran’s sciatic radiculopathy of the left lower extremity has manifested impairment approximating no more than mild incomplete paralysis. 3. Evidence of sciatic radiculopathy of the right lower extremity was first shown and diagnosed during a VA back examination on April 17, 2017. 4. Evidence of sciatic radiculopathy of the left lower extremity was first shown and diagnosed during a VA back examination on April 17, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for service-connected sciatic radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to an initial rating in excess of 10 percent for service-connected sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for an effective date earlier than April 17, 2017 for grant of service connection for sciatic radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 5110, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.400. 4. The criteria for an effective date earlier than April 17, 2017 for grant of service connection for sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 5110, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 2010 to August 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 Decision Review Officer decision. Increased Ratings 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. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of 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 findings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Initial rating in excess of 10 percent for the service-connected sciatic radiculopathy of the right lower extremity Initial rating in excess of 10 percent for the service-connected sciatic radiculopathy of the left lower extremity The Veteran asserts that his service-connected sciatic radiculopathy of the right and left lower extremities is more severe than his initial ratings reflect. His sciatic radiculopathy of the right and left lower extremities has been rated under Diagnostic Code 8520, effective April 17, 2017. 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, which provides criteria for rating impairment of the sciatic nerve, a 10 percent evaluation is warranted for mild incomplete paralysis. A 20 percent rating requires moderate incomplete paralysis, and a 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. The next higher evaluation of 60 percent requires severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent evaluation requires complete paralysis of the sciatic nerve, in which the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or lost. The Board acknowledges that words such as “moderate,” “moderately severe,” and “severe,” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under 38 C.F.R. § 4.123, neuritis (characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating) is to be rated on the scale for the nerve involved, with a maximum equal to severe incomplete paralysis. This code further provides that for neuritis (other than for the sciatic nerve) not characterized by the organic changes referred to the maximum rating will be that for moderate incomplete paralysis. Under 38 C.F.R. § 4.124 (2016), neuralgia (characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve) is to be rated with a maximum equal to moderate incomplete paralysis. The term “incomplete paralysis,” with this 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. 38 C.F.R. § 4.124a. On a July 2016 VA Disability Benefits Questionnaire (DBQ) for back conditions, the examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. No other neurologic abnormalities or findings related to the Veteran’s thoracolumbar spine were indicated. There was no muscle atrophy; deep tendon reflexes were normal; and sensation to light touch testing results were normal. No ankylosis was present. The examiner noted that the Veteran’s disability did not impact his ability to work. The Veteran was service-connected for bilateral sciatic radiculopathy of the lower extremity as secondary to his service-connected back disability, effective April 17, 2017. On an April 2017 VA DBQ for back conditions, the examiner diagnosed the Veteran with bilateral lower extremity radiculopathy of the sciatic nerve. The Veteran reported having low back pain that radiates to his bilateral lower extremity. He reported that he was limited in prolonged bending, stooping, lifting, carrying, and sitting. The examiner indicated that the Veteran had radicular pain or signs or symptoms due to radiculopathy. Specifically, the examiner noted that the Veteran experienced mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness of both the right and lower extremities. No other signs or symptoms of radiculopathy were documented. The examiner indicated that the radiculopathy involved the sciatic root nerve of the right and left lower extremities and was mild in severity. No other neurologic abnormalities or findings related to the thoracolumbar spine were noted. There was no muscle atrophy; deep tendon reflexes were normal; and sensation to light touch testing results were normal. No ankylosis was present. The examiner described the functional impact of the Veteran’s disability as limitation in prolonged bending, stooping, lifting, carrying, and sitting. He noted that the Veteran can perform any type of occupational task without significant restrictions. The examiner remarked that, based on the physical examination, the Veteran has bilateral radiculopathy of the sciatic nerve. VA outpatient treatment records, dated from 2016 to 2018, document a history of chronic back pain that radiates to the Veteran’s right and left legs. However, none of those medical records show evidence of radicular pain or symptoms associated with radiculopathy. After a review of the evidence of record, the Board finds that the Veteran is not entitled to a rating higher than the 10 percent currently assigned for his sciatic radiculopathy of either lower extremity. The evidence does not demonstrate that the sciatic radiculopathy of the Veteran’s right and left lower extremities approximate moderate incomplete paralysis such that a higher rating would be warranted under Diagnostic Code 8520, at any point during the appeal period. Consideration has been given to the Veteran’s complaints of worsening symptoms. However, there is no evidence of muscular atrophy, motor function impairment, or a decrease in reflexes. Further, while the Veteran reported pain and numbness, strength and reflex testing results were normal during both VA examinations. As noted above, symptoms associated with radicular pain and radiculopathy were not present until the April 2017 VA examination, at which time the examiner specifically described the Veteran’s symptomatology as “mild.” Reviewing the evidence in total, it appears that the Veteran’s neurological symptoms are entirely sensory. As previously stated, the next-higher rating of 20 percent requires evidence of moderate incomplete paralysis of the sciatic nerve, which has not been shown on any VA examination or throughout the Veteran’s medical records. There is simply no objective medical evidence indicating moderate incomplete paralysis; thus, an initial evaluation higher than 10 percent for the Veteran’s right and left lower extremity sciatic radiculopathy is not warranted at any point during the appeal period under Diagnostic Code 8520. In addition, neither the Veteran nor his attorney 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). The Board is sympathetic to the Veteran’s belief that a higher rating is warranted for his right and left lower extremity sciatic radiculopathy. However, the evidence of record, when compared to the rating criteria, do not warrant a higher rating at any time during the appeal period. Accordingly, the Board finds that the preponderance of the evidence is against this claim, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Earlier Effective Dates Entitlement to an effective date earlier than April 17, 2017 for grant of service connection for sciatic radiculopathy of the right lower extremity Entitlement to an effective date earlier than April 17, 2017 for grant of service connection for sciatic radiculopathy of the left lower extremity The Veteran contends that he is entitled to an effective date earlier than April 17, 2017 for the award of service connection for sciatic radiculopathy of the right and left lower extremities. In this regard, the Agency of Original Jurisdiction (AOJ) issued a January 2018 Decision Review Officer decision, which granted service connection for sciatic radiculopathy of the right and left lower extremities, as secondary to service-connected lumbar spine strain with anterolisthesis, spondylosis and degenerative arthritis, and awarded a 10 percent initial rating for each lower extremity, effective from April 17, 2017. Under governing law, the effective date for a grant of compensation will be the day following separation from active service, or the date entitlement arose if a claim is received within one year after separation from service. 38 U.S.C. § § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. Id. As relevant herein, a claim or application is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400(a). Generally, the effective date of an award of an increased rating claim shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the application is received within one year from such date; otherwise, the effective date of the award is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. § 3.400(o)(2). According to the appropriate regulation, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim, provided that it identified the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (prior to March 24, 2015). The Board notes that the Veteran never filed a formal or informal claim for service connection for sciatic radiculopathy of the right or left lower extremity. The Veteran was scheduled for a VA examination on April 17, 2017 to determine the severity of his service-connected back disability. During the course of the back examination, the Veteran reported back pain that radiated to his bilateral lower extremity. He reported that he was limited in prolonged bending, stooping, lifting, carrying, and sitting. On examination, the Veteran had normal sensation of the lower extremity; and mild intermittent pain, paresthesias and/or dysesthesias, and numbness on the right and left lower extremities. The examiner described the overall severity of the right and left lower extremity radiculopathy as mild and noted that it involved the L4/L5/S1/S2/S3 sciatic nerve roots. Based on the results of the examination, he diagnosed the Veteran with bilateral radiculopathy of the sciatic nerve. In a January 2018 Decision Review Officer decision, the Veteran was assigned an initial 10 percent evaluation for each lower extremity for his sciatic radiculopathy, with an April 17, 2017 effective date, the date he was first diagnosed with this disability. As discussed above, an award of service connection is effective as of the date a claim is received, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). In this case, despite the Veteran’s contention, the record clearly shows that entitlement to service connection for his bilateral lower extremity sciatic radiculopathy did not arise until April 17, 2017 – the date this disability was diagnosed. Prior to this date, there is no such diagnosis in the Veteran’s medical records. As noted earlier, the July 2016 VA examination for the Veteran’s back did not reveal signs of radicular pain or other symptoms associated with radiculopathy. In addition, VA outpatient treatment records show complaints of back pain, but there is no indication of radicular pain or symptoms of radiculopathy. Accordingly, the Board finds that an effective date prior to April 17, 2017 for the award of service connection for sciatic radiculopathy of the right and left lower extremity is not warranted, as the Veteran did not file a claim for service connection for this disability prior to this date, and there was no diagnosis of sciatic radiculopathy of the lower extremities prior to this date. Based on this evidentiary posture, there is no basis for an award of service connection prior to (CONTINUED ON NEXT PAGE) April 17,2017. Therefore, the Board finds that entitlement of service connection for bilateral lower extremity sciatic radiculopathy first arose on April 17, 2017 – the date this disability was first diagnosed. There is no basis to award an earlier effective date for service connection; thus, this appeal must be denied. Id. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, Associate Counsel 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.