Citation Nr: 20021436 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-32 186 DATE: March 25, 2020 ORDER The appeal seeking entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar strain with degenerative disc disease, L4-5 and L5-S1, and herniated nucleus pulposus is dismissed. An initial disability rating of 20 percent for service-connected radiculopathy, right lower extremity is granted, subject to the rules and regulations governing the payment of monetary awards. FINDINGS OF FACT 1. At the January 2020 hearing before the Board of Veterans Appeals (Board), prior to the promulgation of a decision in the appeal, the Veteran withdrew her appeal seeking entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar strain with degenerative disc disease, L4-5 and L5-S1, and herniated nucleus pulposus. 2. For the entire period at issue, the overall severity of the Veteran’s service-connected radiculopathy, right lower extremity has been best characterized as moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar strain with degenerative disc disease, L4-5 and L5-S1, and herniated nucleus pulposus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for an initial disability rating of 20 percent, but not higher, for service-connected radiculopathy, right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 2010 to December 2014. A hearing was held before the Board in January 2020. A hearing transcript is of record. At the hearing, the record was held open for 30 days for the submission of additional evidence and review of the evidence by the Agency of Original Jurisdiction (AOJ) was waived. Additional evidence was received following the hearing and is considered herein. Withdrawn Issue The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. At the January 2020 Board hearing, the Veteran withdrew on the record the appeal seeking entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar strain with degenerative disc disease, L4-5 and L5-S1, and herniated nucleus pulposus; hence, there remain no allegations of errors of fact or law for appellate consideration in that matter. See Hearing Transcript. Notably, it was explained to the Veteran at the hearing that no further action would be taken to address her claim, and she expressed her agreement. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Increased Rating 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 evaluations 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. Gilbert, 1 Vet. App. at 53. Entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy, right lower extremity Radiculopathy of the sciatic nerve is rated under Diagnostic Code 8520. Under Diagnostic Code 8520, a maximum schedular rating of 80 percent is awarded for complete paralysis of the sciatic nerve. With complete paralysis, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. When there is incomplete paralysis, a 60 percent rating is in order for severe disability with marked muscular atrophy. Moderately severe incomplete paralysis warrants a 40 percent evaluation, and moderate incomplete paralysis warrants a 20 percent rating. Finally, mild incomplete paralysis warrants a 10 percent rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The words “mild,” “moderate,” and “severe” are not defined in the VA 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.” See 38 C.F.R. § 4.6. The term “incomplete paralysis,” with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, Diagnostic Code 8510-8730. By way of history, the May 2015 rating decision currently on appeal to the Board granted service connection for right lower extremity radiculopathy with sciatica (claimed as right leg and right foot numbness tingling) and assigned a disability rating of 10 percent effective January 1, 2015. The Veteran contends her disability warrants a higher rating. In applying the above laws to the facts of this case, the Board finds that the Veteran’s overall disability picture more closely approximates the 20 percent disability rating criteria for service-connected right lower extremity radiculopathy, but no higher. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. At the January 2015 VA examination, the Veteran was diagnosed with right side radiculopathy. Although she was not found to have constant pain in her right lower extremity, she was noted to have severe intermittent pain, paresthesias and/or dysesthesias and numbness. She did not have any other signs or symptoms of radiculopathy, and the overall severity of the radiculopathy on the right side was determined to be mild. See January 2015 VA examination. An April 2016 MRI of the lumbar spine found the lumbar vertebrae were unremarkable with no evidence of collapse, focal lesion, marrow replacement or other significant pathology. The impression was mild disc bulging at L4-L5 and small disc protrusion at L5-S1. See Medical Treatment Record received in May 2016. An August 2016 private patient evaluation report notes that the Veteran complained of right leg pain that was moderately severe and occasional (versus intermittent, frequent, or constant). See Medical Treatment Record received in March 2017. Thereafter, a May 2017 VA examination was conducted. Although the Veteran complained of pain radiating down her right leg, upon physical examination, there were no findings of radicular pain or any other signs or symptoms due to radiculopathy. The examiner indicated there was no evidence of radiculopathy during that examination. See May 2017 VA examination. The Veteran was most recently evaluated by VA in August 2018; she complained of pain in the lower back that radiated to the right hip and right lower extremity. She also complained of paresthesia/some numbness in the right leg. On examination, the Veteran was noted to have mild constant pain present in the right lower extremity. She also had severe intermittent pain with moderate paresthesias and/or dysesthesias and mild numbness. The left lower extremity did not show any signs or symptoms due to radiculopathy. A moderate level of overall severity was documented for the Veteran’s right-side radiculopathy. See August 2018 VA examination. At the January 2020 Board hearing, the Veteran testified that she experienced pain, numbness, tingling, and shooting pain from her lower back all the way down to her right foot. She stated her flare-ups were severe and incapacitating and occurred between four to seven weeks. She indicated she was unable to walk, instead laying on a flat service to relieve the pain was required, and none of the therapeutic measures she had tried had been able to alleviate her symptoms. The Veteran further testified that the pain she experienced in her leg caused her a great deal of difficulty in her daily life with three small children. See Hearing Transcript. Following the Board hearing, the Veteran submitted a statement dated February 2020 from a friend who has known her since her active duty service. Her friend described the Veteran’s daily struggle with her right leg pain. In particular, the friend described the Veteran’s inability to exercise as a normal 30-year-old should and that the pain she experienced often prevented her from carrying her children. See February 2020 Statement from Friend. In applying the relevant rating criteria to the facts in this case, and after a thorough review of the evidence of record, including the Veteran’s lay testimony, the Board finds that an increased initial rating of 20 percent, but no higher, for the Veteran’s service-connected right lower extremity radiculopathy is warranted. While the January 2015 VA examiner concluded the Veteran’s right lower extremity radiculopathy was overall mild in severity, the examiner did note the Veteran experienced severe intermittent pain, paresthesias and/or dysesthesias as well as numbness on her right side. Moreover, the more recent examination in August 2018 concluded a moderate level of severity was experienced on the Veteran’s right side. Despite a mild overall characterization in the January 2015 VA examination, the Board finds the presence of severe symptoms during the examination supports the conclusion that the overall symptoms the Veteran has experienced during the entire period at issue more closely approximate a moderate incomplete paralysis level. However, the Board does not find the evidence raises to the level of moderately severe at any point during the period on appeal in order to warrant a rating of 40 percent. In reaching this conclusion, the Board acknowledges the argument presented on the Veteran’s behalf during the January 2020 Board hearing. Specifically, it was argued that a 40 percent rating was warranted because the March 2015 VA examination demonstrated “pain, paresthesia, dysesthesia, burning, prickling, all noted as severe,” and because the August 2018 VA examination showed “severe pain and moderate prickling, tingling in [the] right leg and level of severity [was] moderate.” Additionally, the Veteran’s representative noted that an August 2016 treatment record demonstrated that the Veteran had “moderately severe” right leg radiculopathy that should, therefore, correspond directly to a 40 percent rating under Diagnostic Code 8520. Nevertheless, it is important to properly evaluate these findings within the context that they were provided. For example, although the Veteran was noted to have severe pain during the January 2015 VA examination, it was also noted to be intermittent versus constant. The examiner also considered the other symptoms demonstrated during that examination and concluded that the overall severity of the Veteran’s radiculopathy on the right side was mild. Similarly, although the Veteran was noted to have moderately severe right reg radiculopathy during an August 2016 private evaluation, the Board emphasizes this was described as only occasional. Finally, although the Veteran demonstrated severe pain at the August 2018 VA examination, it was also described as intermittent and the overall level of severity was, as noted by the Veteran’s representative, moderate. For these reasons, as discussed above, the Board finds a higher rating of 20 percent is warranted, but a 40 percent rating is not. Accordingly, in giving the Veteran and her lay assertions the benefit of the doubt, the Board finds the Veteran’s service-connected radiculopathy, right lower extremity warrants a rating of 20 percent, but no higher, for the entire period at issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.