Citation Nr: 20021394 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-28 298 DATE: March 25, 2020 ORDER A rating in excess of 20 percent for right lower extremity (RLE) radiculopathy, prior to September 27, 2018, is denied. A rating of 40 percent, but no greater, for RLE radiculopathy, since September 27, 2018, is granted. A rating in excess of 20 percent for left lower extremity (LLE) radiculopathy is denied. FINDINGS OF FACT 1. The Veteran had active service from June 1969 to January 1972. 2. Prior to September 27, 2018, RLE radiculopathy was manifested by moderate radiculopathy and moderate disability with symptoms of moderate constant pain, severe intermittent pain, and moderate sensory impairment, such as numbness and paresthesias/dysesthesias equal to moderate incomplete paralysis of the sciatic nerve. 3. Since September 27, 2018, RLE radiculopathy has been manifested by subjective complaints of burning pain and numbness in the right leg; objective findings include moderate to severe pain and moderate sensory symptoms (paresthesias/dysesthesias and numbness) equal to moderately severe incomplete paralysis of the RLE. 4. LLE radiculopathy has been manifested by subjective complaints of burning pain and numbness in the left leg; objective findings include overall mild to moderate pain and sensory symptoms (paresthesias/dysesthesias and numbness) representing moderate radiculopathy and moderate incomplete paralysis of the LLE. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for radiculopathy of the RLE were not met prior to September 27, 2018. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.124a, Diagnostic Code (DC) 8720 (2019). 2. The criteria for a 40 percent rating, but no greater, for radiculopathy of the RLE have been met since September 27, 2018. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.124a, DC 8720 (2019). 3. The criteria for a rating in excess of 20 percent for radiculopathy of the LLE have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.124a, DC 8720 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The record reflects a complicated procedural history surrounding the ratings assigned or RLE and LLE radiculopathy. As discussed in detail in a February 2016 Board decision, the issues of increased ratings for this disability were incorrectly listed on a July 2015 statement of the case. That Board decision also referred new claims filed in 2014 and 2015 for increased ratings for RLE and LLE radiculopathy for Regional Office adjudication. The rating decision was issued in October 2018 and is the decision on appeal. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran is currently rated at 20 percent for radiculopathy of the sciatic nerve, RLE and LLE, under DC 8720 for neuralgia of the sciatic nerve. Neuralgia is rated pursuant to the rating criteria under DC 8520 for paralysis of the sciatic nerve. In order to warrant a higher rating, the evidence must show moderately severe incomplete paralysis of the sciatic nerve (40 percent under DC 8520). The Veteran reports burning pain and numbness below the knee of the left leg. Turning to the medical evidence, an April 2015 VA examiner noted moderate incomplete paralysis of the sciatic nerve of the right leg and mild incomplete paralysis of the sciatic nerve of the LLE. There was decreased sensation in the right lower leg and foot. Sensation on the left was normal. A straight leg raise was positive on each side. Reflexes were normal bilaterally. Other symptoms included moderate constant pain and severe intermittent pain in the RLE with moderate paresthesias/dysesthesias, and numbness. In the LLE, there was mild constant pain, moderate intermittent pain, mild paresthesias, and mild numbness. Next, a January 2018 VA examiner indicated moderate constant and intermittent pain in the RLE with moderate paresthesias/dysesthesias, and moderate numbness. In the LLE, there was mild constant pain, mild intermittent pain, mild paresthesias, and mild numbness. The severity of radiculopathy was noted as moderate on in both the RLE and LLE and that both sides exhibited mild incomplete paralysis. During a September 2018 VA examination, the Veteran reported daily burning pain and numbness in both legs. Other symptoms included moderate constant pain, severe intermittent pain, and moderate paresthesias/dysesthesias, and numbness in both the RLE and LLE. The examiner noted incomplete, moderately severe paralysis of the sciatic nerve of the right leg and incomplete moderate paralysis of the sciatic nerve of the left leg. A review of treatment notes does not reflect symptoms more severe than those found at the VA examinations discussed above. Based on the above evidence, the Board determines that a staged rating is warranted for the RLE with a rating in excess of 20 percent denied prior to September 27, 2018, and a rating of 40 percent, but no greater, assigned since September 27, 2018, the date of the examination that reflected the change in severity. Prior to September 27, 2018, the RLE exhibited at the worst, moderate disability with symptoms of moderate constant pain, severe intermittent pain, and moderate sensory impairment, such as numbness. A higher rating requires moderately severe disability, and the Board determines that the totality of the Veteran’s symptoms during the period do not reach that level of severity with a preponderance of the symptoms demonstrating a moderate disability. For the period since September 27, 2018, the RLE disability was manifested by burning and numbness in the whole leg with pain and sensory symptoms ranging from moderate to severe so as to reach the level of a moderately severe disability as determined by the September 2018 VA examiner. Thus, a 40 percent rating is warranted as of that date. Nevertheless, a rating in excess of 40 percent is not warranted. Such rating requires disability impairment equivalent to severe incomplete paralysis. As the manifestations of the RLE radiculopathy were predominantly moderate in severity with only intermittent pain recorded as severe, the Board concludes that the disability does not more closely approximate a severe disability to support a rating in excess of 40 percent since September 27, 2018. For the LLE disability, the Veteran’s symptoms do not rise to the level of a moderately severe disability at any time during the period on appeal. Except for intermittent pain documented as severe at the January 2018 VA examination, the LLE manifestations were mild to moderate throughout the appeal period. Therefore, the Board determines that a rating in excess of the 20 percent currently assigned to the Veteran’s LLE is not more closely approximated at any time during the appeal period. A rating in excess of 20 percent for the Veteran’s LLE disability is denied. The Board has also considered the Veteran’s lay statements that his disabilities are worse than contemplated by the ratings assigned. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s radiculopathy of the RLE and LLE, has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal for ratings in excess of those assigned is denied. (Continued on the next page)   Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). K. SCHAEFER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kokolas, 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.