Citation Nr: 21003341 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-43 986 DATE: January 21, 2021 ORDER Entitlement to an increased schedular evaluation of radiculopathy for each lower extremity in excess of 10 percent prior to November 6, 2015; in excess of 20 percent, between November 6, 2015 and August 5, 2016; in excess of 10 percent between August 5, 2016 and November 21, 2019; and in excess of 20 percent, thereafter is denied. FINDINGS OF FACT Prior to November 6, 2015, the Veteran’s radiculopathy in each lower extremity did not manifest by more than mild incomplete paralysis. From November 6, 2015 to August 5, 2016, the radiculopathy in each lower extremity had manifested by no more than moderate incomplete paralysis. From August 5, 2016 to November 21, 2019, the radiculopathy in each lower extremity had manifested by no more than mild incomplete paralysis. From November 21, 2019, the radiculopathy in each lower extremity had manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW The criteria for entitlement to an increased schedular evaluation of radiculopathy of each lower extremity, in excess of 10 percent prior to November 6, 2015; in excess of 20 percent, between November 6, 2015 and August 5, 2016; in excess of 10 percent between August 5, 2016 and November 21, 2019; and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code (DC) 8520 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1974 to December 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, NC. This case was previously before the Board in November 2018 when it was remanded to obtain a current examination, since the Veteran had indicated a worsening of his condition since it was last evaluated. Following a November 2019 VA examination, in a July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) awarded the Veteran a 20 percent evaluation for the Veteran’s radiculopathy, right and left lower extremities, effective November 21, 2019, the date of the VA examination. The case has subsequently been returned to the Board at this time for further appellate review. Additionally, it is noted this appeal arose out of the initial separate award of compensation benefits for left and right lower extremity radiculopathy secondary to the Veteran’s service connected low back disability. As the appeal period progressed over the course of time, the RO assigned various ratings for each lower extremity, when it considered the factual findings showed distinct time periods where the Veteran exhibited symptoms that warranted different ratings. As such, there are staged ratings for each lower extremity. It is unclear from the record whether the Veteran seeks to establish a temporary total rating following surgery on his separately service connected low back disability. That matter, however, is not the subject of this appeal, and the Veteran may clarify his intentions with the Regional Office as he sees fit. Increased Rating Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Radiculopathy of the sciatic nerve is rated under DC 8520. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and a maximum 80 percent rating is warranted for complete paralysis. The terms “mild,” “moderate,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. A note preceding the rating schedule for diseases of the peripheral nerves states that, “[w]hen the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.” 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. The Court explained that this note “provides only a maximum disability rating for wholly sensory manifestations of incomplete paralysis of a peripheral nerve” and does not require a certain minimum disability rating where there are also non-sensory manifestations. Miller v. Shulkin, 28 Vet. App. 376, 380 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Entitlement to an increased schedular evaluation of radiculopathy for each lower extremity in excess of 10 percent prior to November 6, 2015 During a February 2015 VA examination, the Veteran reported developing sharp pain, then numbness intermittently in buttocks and posterior thighs approximately 9 to 10 years ago which has worsened since. His symptoms usually occurred with back pain and worsened with standing or walking. He denied numbness, tingling or pain in his feet. Muscle strength testing showed active movement against some resistance. Reflex exam of the lower extremities revealed normal findings. Sensory exam was normal to light touch. There were no trophic changes, and the Veteran’s gait was normal. The lower extremity sciatic nerve was identified as normal on the right and the left sides. The Veteran’s peripheral nerve condition impacted his ability to work since his position as a supervisor at the Camp Lejeune Vehicle Registration required prolonged standing, walking, bending, and lifting heavy objects which caused increased pain and numbness in his legs. The Veteran was diagnosed with bilateral lumbar radiculopathy involving the sciatic nerve. In August 2015, the Veteran had a neurosurgical consultation at Atlantic Neurosurgical & Spine Specialists (ANSS) for his bilateral leg pain. He rated his pain anywhere from 9 to 10 out of 10 in all positions and felt weak in his legs. Upon motor examination, his lower extremities were normal except dorsiflexion was 3/5. The straight leg raising test was negative. Conservative management was recommended, and he was referred to Johnston Pain Management. At a follow-up appointment at ANSS in September 2015, the Veteran reported pain, numbness, tingling and weakness in his lower extremities, with symptoms worse when up and about and better when seated and resting. Upon examination, his lower extremities were normal but with break weakness in his dorsiflexors of the feet bilaterally. The physician noted that he was not certain whether or not that was just effort dependent or pain related. He indicated that the Veteran had signs and symptoms of neurogenic claudication and radiculopathy and recommended that he undergo a minimally invasive lumbar laminectomy. The Veteran was treated several times at the Jacksonville Children’s Multispecialty Clinic (JCMC) from June 2015 to September in 2015 for his leg pain. On several occasions, he described the pain in his lower extremities as numbness, sharp and tingling. His symptoms were aggravated by walking. He complained of chronic radicular pain into the back of his legs into his feet at times and noted a generalized weakness in his legs. In addition, he had tingling and numbness along the back of his thighs and midline low back. The Veteran was treated several times at Johnston Pain Management (JPM) in October 2015. At his initial consultation the Veteran rated his pain 10 out 10, the worst pain possible, and indicated his medications were not effective. He complained of constant aching, stabbing, burning pain that radiated down the front and back of the thigh and legs down to the top of both feet and ankles. He stated that the pain was worse with standing, bending, lifting, prolonged sitting or twisting. He reported less pain with constant shifting, lying down and resting on his left side and noted some relief with sitting in certain chairs with his legs raised. No limitations were noted on flexion, extension, internal rotation or external rotation of the lower extremities. No tenderness was noted on palpation. He was diagnosed with radiculopathy of the lumbosacral region. At his next visit he reported pain as 8 out of 10 and indicated his medication regiment was helping with his pain. He described pain symptoms were similar to his previous visit. During both visits, the examiner noted that he had an antalgic gait which was slowed and assisted by cane. It was recommended that the Veteran consider lumbar epidural injections for his pain. On his third visit, he received the injections for his lumbar radiculopathy. Following the procedure on his next visit, the Veteran rated his pain 7 out of 10 and reported that the medications were effective, and he was able to walk a little further without needing his cane. The examiner noted that the straight leg raising test was negative and the Veteran was able to move all extremities without difficulty. The Board finds that prior to November 6, 2015, the evidence set out above does not show that the Veteran’s lower extremity impairment was productive of more than mild incomplete paralysis. Thus an increased rating for the Veteran’s radiculopathy for each lower extremity during that time frame is not warranted. Entitlement to an increased schedular evaluation of radiculopathy for each lower extremity in excess of 20 percent, between November 6, 2015 and August 5, 2016 A February 2016 rating action increased the Veteran’s disability rating to 20 percent for each lower extremity, effective from November 2015, when the Veteran reported an increase in symptoms. This rating also followed a January 2016 VA examination. At that time, the Veteran reported severe constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and moderate numbness in the lower extremities. His sensory exam showed decreased sensation testing for light touch for his lower extremities. He had an antalgic gait with the etiology as secondary to radiculopathy and degenerative joint disease of the bilateral knees. This was characterized as moderate incomplete paralysis of the sciatic nerve of each lower extremity. In April 2016, the Veteran submitted his ANSS private treatment records from August 2015 through May 2016. These showed the Veteran’s complaints of his bilateral leg pain, and some numbness and tingling in his feet. In June 2016, the Veteran underwent a laminectomy at the Wilmington SurgCare by Dr. John Alex Thomas with ANSS. At his follow-up appointment two weeks later, the Veteran noted less pain and numbness in his legs and feet. He was moving his lower extremities with full strength and his gait was normal. The Veteran was afforded another VA examination in August 2016. At that time, the Veteran reported no constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the lower extremities. Muscle strength testing showed normal strength and the reflex exam of the lower extremities revealed normal findings. The sensory exam was normal to light touch and there were no trophic changes. The Veteran had an antalgic gait. His presentation was characterized as mild incomplete paralysis of the sciatic nerve of the lower extremities. As the Veteran exhibited no worse than moderate incomplete paralysis of the sciatic nerve in each lower extremity during the interval between November 2015 and August 2016, an evaluation in excess of 20 percent for is not warranted. Entitlement to an increased schedular evaluation of radiculopathy for each lower extremity in excess of 10 percent, between August 5, 2016 and November 21, 2019 For the period after August 2016 and prior to November 2019, the Veteran has contended his condition declined, and in September 2017, in support of his claim, the Veteran submitted a statement from his wife, as well as a statement of his own regarding the August 2016 examination. They both indicated that the Veteran needed assistance from the doctor and his wife to sit up and that the doctor advised the Veteran to request a home health aide to watch him during the day. He said that the examiner failed to include things in her report that she discussed with him during the examination. The Veteran stated that he still had severe nerve damage and that he was still under the care of JPM. He said that he was in continued pain and suffering daily. In her statement, the Veteran’s wife concurred with her husband. An ANSS December 2016 progress note reflects that the Veteran noticed less pain radiated into his legs following his laminectomy but noted an achy pain in his knees when he walked. The Veteran’s leg symptoms were considerably better than his preoperative state. He demonstrated full strength in the lower extremities. Sensation was intact to pin prick and light touch in the lower extremities in all dermatomes. Deep tendon reflexes were symmetric in the lower extremities, with the exception of diminished reflex at the right patella. The Veteran’s gait was normal. During a January 2017 examination at ANSS, the Veteran said he continued to have pain in his back that radiated into his hips and knees whenever he stood and walked. He denied weakness in his legs but did say that the pain limited his mobility and therefore affected his hips and knees. His gait was normal. His MRI indicated a worsening stenosis above the level of his previous laminectomy, and it was noted that he might ultimately benefit from another laminectomy there. During a March 2017 office visit to the JCMC, the Veteran complained of constant bilateral knee pain that radiated to the hips. He said it was aching and sharp and was aggravated by bending and movement and that there were no relieving factors. The assessment was primary osteoarthritis of both knees, and bilateral hip joint arthritis. The Veteran was referred to an orthopedist. The Board notes that the Veteran is service connected for his bilateral hip osteoarthritis, effective April 2016. A March 2017 letter from JPM summarized the Veteran’s treatment since October 2015, including the lumbar epidural injections that offered temporary relief in the past, but were no longer recommended. The note referenced the June 2016 laminectomy which provided minor relief, although the Veteran reported a new post-surgical pain of the lumbar spine. Physical therapy was providing minimal relief. Since his care began with JPM, the Veteran had developed bilateral knee and hip pain that was responding somewhat to his pain medications. In February 2019, the Veteran had a follow-up appointment with ANSS after a recommendation of physical therapy. He complained that the therapy increased his pain, so he discontinued it. The progress note reflects that the Veteran had some radiation of pain with activity and at rest. With walking, he had pain in his knees, with pain rated 7 out of 10. He demonstrated some mild weakness throughout his lower extremities. Sensation was intact to pin prick and light touch in the lower extremities in all dermatomes. Deep tendon reflexes were symmetric in the lower extremities. The Veteran’s gait was normal. The Veteran described some pain during the appointment and the examiner indicated that the pain might represent that of a lumbar neurogenic claudication. The veteran refused additional treatment at that time and indicated he would continue to follow-up with pain management. In a November 2019 VA examination, the Veteran reported moderate constant pain, mild paresthesias and/or dysesthesias, and mild numbness in the lower extremities. Muscle strength testing showed active movement against some resistance in the lower extremities. Reflex exam revealed normal findings in the knees and hypoactive in the ankles. His sensory exam showed decreased sensation testing for light touch for his lower extremities. The Veteran’s gait was antalgic, slow but steady. This was characterized as moderate incomplete paralysis of the sciatic nerve of each lower extremity. Although the Veteran disputes the accuracy of the August 2016 VA examination, its findings generally correspond with those reflected in subsequent records for the period prior to November 2019. As these did not show more than mild incomplete paralysis, a rating in excess of 10 percent during the interval between August 2016 and November 2019 for each lower extremity is not indicated. Entitlement to an increased schedular evaluation of radiculopathy for each lower extremity in excess of 20 percent, since November 21, 2019 As indicated above, the November 2019 examination report showed no more than moderate incomplete paralysis of the sciatic nerve in each lower extremity. Similarly, VA treatment records dated after this time do not reflect complaints or findings consistent with moderately severe incomplete paralysis of the sciatic nerve. A rating in excess of 20 percent after November 2019 is not warranted. Because the overall findings during the relevant intervals do not show disability productive of more than mild incomplete paralysis prior to November 2015; more than moderate incomplete paralysis between November 2015 and August 2016; more than mild incomplete paralysis between August 2016 and November 2019; and no more than moderate incomplete paralysis after November 2019, increased ratings are not indicated. M. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Christian, Associate Attorney 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.