Citation Nr: 21000391 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 09-44 447 DATE: January 5, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected left lower extremity radiculopathy involving the femoral nerve is denied. Entitlement to an initial disability rating in excess of 10 percent for service-connected right lower extremity radiculopathy involving the femoral nerve is denied. Prior to May 4, 2017, entitlement to an initial compensable disability rating for left lower extremity radiculopathy involving the sciatic nerve is denied. Prior to May 4, 2017, entitlement to an initial compensable disability rating for right lower extremity radiculopathy involving the sciatic nerve is denied. Since May 4, 2017, entitlement to an initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy involving the sciatic nerve is granted, subject to the laws and regulations governing the payment of monetary benefits. Since May 4, 2017, entitlement to an initial disability rating of 20 percent, but no higher, for right lower extremity radiculopathy involving the sciatic nerve is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s bilateral lower extremity radiculopathy involving the femoral nerve has been manifested by no more than mild incomplete paralysis. 2. Prior to May 4, 2017, the evidence of record does not show that the Veteran’s bilateral lower extremity radiculopathy manifested with any involvement of the sciatic nerve. 3. Since May 4, 2017, the Veteran’s bilateral lower extremity radiculopathy involving the sciatic nerve has been manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for left lower extremity radiculopathy involving the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8526. 2. The criteria for entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy involving the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8526. 3. Prior to May 4, 2017, the criteria for entitlement to an initial compensable disability rating for left lower extremity radiculopathy involving the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. 4. Prior to May 4, 2017, the criteria for entitlement to an initial compensable disability rating for right lower extremity radiculopathy involving the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. 5. Since May 4, 2017, the criteria for entitlement to an initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy involving the sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. 6. Since May 4, 2017, the criteria for entitlement to an initial disability rating of 20 percent, but no higher, for right lower extremity radiculopathy involving the sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1999 to July 2005. In October 2016, she testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. The above issues stem from a May 2007 increased rating claim for the Veteran’s service-connected lumbosacral strain. An interim June 2018 rating decision granted service connection and assigned separate 10 percent ratings for both right and left lower extremity radiculopathy, effective May 25, 2007. Although the June 2018 rating decision did not specifically characterize the disabilities as affecting the femoral nerve, the diagnostic code used to evaluate the disabilities were specific to the femoral nerve. The radiculopathy claims were last before the Board in January 2019. There has been substantial compliance with the previous remand and the Board will proceed with adjudication of these claims. Stegall v. West, 11 Vet. App. 268 (1998). A subsequent April 2020 rating decision granted service connection and assigned separate 10 percent ratings for radiculopathy of the bilateral lower extremities involving the sciatic nerve, effective June 7, 2019. As the Veteran’s radiculopathy disabilities are manifestations of her service-connected lumbosacral strain, her initial appeal of that claim encompassed ratings for all manifestations of the condition. The ratings for the lower extremity radiculopathies involving both the sciatic and femoral nerves are part of the appeal of the increased rating claim for the back that was initially perfected to the Board and are therefore before the Board. 38 C.F.R. § 4.71a, Note (1). Increased Rating Disability evaluations are determined by comparing a veteran’s present symptoms with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected left lower extremity radiculopathy involving the femoral nerve 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected right lower extremity radiculopathy involving the femoral nerve 3. Entitlement to an initial compensable disability rating prior to June 7, 2019, and in excess of 10 percent thereafter, for service-connected left lower extremity radiculopathy involving the sciatic nerve 4. Entitlement to an initial compensable disability rating prior to June 7, 2019, and in excess of 10 percent thereafter, for service-connected right lower extremity radiculopathy involving the sciatic nerve The Veteran contends that she is entitled to higher evaluations for her bilateral lower extremity radiculopathy disabilities. For the reasons that follow below, the Board finds that increased ratings are warranted for her bilateral lower extremity radiculopathy involving the sciatic nerve. The Veteran’s bilateral lower extremity radiculopathy involving the sciatic nerve is rated under 38 C.F.R. § 4.124a, DC 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The Veteran’s bilateral lower extremity radiculopathy involving the femoral nerve is rated under 38 C.F.R. § 4.124a, DC 8526. Under DC 8526, complete paralysis of the nerve (paralysis of quadriceps extensor muscles) warrants a 40 percent rating. Disability ratings of 30 percent, 20 percent, and 10 percent are assignable for incomplete paralysis which is severe, moderate, or mild in degree. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Turning to the evidence of record, a November 2007 VA examination noted the Veteran’s gait was normal, and she did not need or use assistive devices. The examiner stated the Veteran worked as a banker, and her duties involved standing for prolonged periods of time which aggravated her back. However, there were no restrictions noted with her employment. The examiner found no sensory or motor deficits on examination. In a December 2007 statement, the Veteran reported experiencing numbness and stiffness in both legs. A May 2008 VA examination report noted the Veteran “gets some numbness, tingling, and paresthesias into her legs, gradual with time. It has just been an ongoing, persistent problem for her. It may be gradually getting worse over the years.” The examiner stated that the Veteran did not use assistive devices, and she was currently working. Upon sensorimotor exam, there was generalized numbness in both legs; normal strength noted. While the examiner stated there was no leg length inequality noted, one leg may appear shorter if the Veteran gets a spasm around her back and pelvis. A September 2009 VA neurology consult noted the Veteran’s reports of chronically intermittent bilateral lower extremity numbness since 2003. The Veteran’s paresthesias is described as numbness as well as “tingling/pins-and-needles.” The examiner found the Veteran presented with “atypical distribution of sensory deficits as well as inconsistency of sensory changes between temperature and pin prick.” The examiner further stated that the Veteran’s history was inconsistent with any typical pattern of sensory changes. A November 2013 VA treatment record noted the Veteran’s reports of numbness in the left and right leg down to her toes. She did not complain of bowel or bladder problems. In October 2015, the Veteran underwent a VA back conditions examination. Sensory examination revealed normal findings in both lower extremities for sensation to light touch testing in the upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1), and the feet/toes (L5). Straight leg raise testing revealed negative results in both legs, and the examiner found no radicular pain or any other signs or symptoms due to radiculopathy. Both muscle strength testing and a reflex exam revealed normal results. The examiner found no neurologic abnormalities and further stated the Veteran did not use any assistive devices for locomotion. On May 4, 2017, the Veteran underwent another VA back examination where she reported experiencing progressively worse radicular symptoms down both legs, as well as foot drop in both feet. A sensory examination for sensation to light touch testing revealed decreased sensation in the left upper anterior thigh (L2), both thighs/knees (L3/4), both lower legs/ankles (L4/L5/S1), and absent sensation in both feet/toes (L5). Straight leg raise testing revealed positive results in both legs. The examiner found the Veteran experienced severe intermittent radicular pain, mild symptoms of paresthesias and/or dysesthesias, and moderate symptoms of numbness in both lower extremities. The examiner found the Veteran’s radiculopathy involved the sciatic nerve with moderate severity of symptoms in both lower extremities. The examiner did not find the Veteran had muscle atrophy. In January 2018, the Veteran underwent a VA examination where she reported experiencing either bilateral leg numbness or shooting pain down both her legs. Both reflex and sensory examinations for light touch testing. Straight leg raising tests revealed positive findings in both legs. The examiner found the Veteran experienced mild intermittent radicular pain, mild symptoms of paresthesias and/or dysesthesias, and mild symptoms of numbness in both lower extremities. The examiner found the Veteran’s radiculopathy involved the femoral nerve with mild severity of symptoms in both lower extremities. The examiner did not find the Veteran had muscle atrophy. In June 2019, the Veteran underwent a VA peripheral nerve conditions examination where she reported that she can intermittently trip over the toes of both feet with walking. She denied using any brace or assistive device. The Veteran was noted to experience moderate intermittent pain in both lower extremities, as well as moderate numbness in both extremities. Muscle strength testing revealed normal findings, and the Veteran was not found to have muscle atrophy. A sensory examination for sensation to light touch testing revealed decreased sensation in the both thighs/knees (L3/4), as well as both lower legs/ankles (L4/L5/S1). There was normal sensation in both feet/toes (L5). The Veteran did not have trophic changes attributable to peripheral neuropathy. Her gait was described as normal. The examiner characterized the radiculopathy involved both the femoral and sciatic nerves as mild incomplete paralysis in both lower extremities. With respect to the service-connected radiculopathy involving the femoral nerve, the Board finds that the evidence does not support an initial disability rating greater than 10 percent for either lower extremity at any point during the appeal as there is no evidence of more than mild sensory deficits affecting the femoral nerve. The Board finds that the Veteran’s bilateral lower extremity radiculopathy disabilities are primarily manifested by sensory disturbance and pain in both lower extremities. While the Veteran had reported some trouble with walking, the VA examinations of record have consistently found no gait disturbance upon examination of the Veteran. The evidence is against a finding that the disability in either leg is manifested by impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. Further, both the January 2018 and June 2019 VA examiners specifically found that the Veteran’s radiculopathy involving the femoral nerve manifested with mild severity of symptoms in both lower extremities. In sum, the Board finds that the level of impairment throughout the appeal is most analogous to mild incomplete paralysis with respect to the Veteran’s bilateral radiculopathy involving the femoral nerve. With respect to the service-connected radiculopathy involving the sciatic nerves, the Board finds that prior to May 4, 2017, the criteria for a compensable rating are not met as the evidence of record fails to show any involvement of the sciatic nerve. The first medical evidence of record showing involvement of the sciatic nerve came in the May 4, 2017 VA examination, which documented positive results in straight leg raise testing in both legs – indicating involvement of the sciatic nerve. The examiner specifically found the Veteran’s radiculopathy involving the sciatic nerve manifested with moderate symptoms in both lower extremities. As such, the Board finds that the level of impairment with respect to the Veteran’s bilateral radiculopathy involving the sciatic nerve is most analogous to moderate incomplete paralysis effective the May 4, 2017, date of the VA examination. However, the findings do not meet or more closely approximate the criteria for a moderately severe rating for the sciatic nerve. The evidence is similarly against a finding that the disability in either leg is manifest by impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. The Veteran’s bilateral lower extremity radiculopathy disabilities involving the sciatic nerve are primarily manifested by sensory disturbance and pain in both lower extremities. In summary, the preponderance of the evidence is against the claim for an initial disability rating in excess of 10 percent for bilateral lower extremity radiculopathy involving the femoral nerve. The preponderance of the evidence is also against the claim for an initial compensable disability rating prior to May 4, 2017, for bilateral lower extremity radiculopathy involving the sciatic nerve. Finally, the Board finds that an initial disability rating of 20 percent, but no higher, is warranted effective May 4, 2017, for bilateral lower extremity radiculopathy involving the sciatic nerve. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.