Citation Nr: 21004784 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-19 756 DATE: January 28, 2021 ORDER Entitlement to a 40 percent rating for left lower extremity radiculopathy, prior to August 28, 2020, is granted. Entitlement to a rating in excess of 40 percent for left lower extremity radiculopathy from August 28, 2020, is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s left lower extremity has been manifested by no more than moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for left lower extremity radiculopathy, prior to August 28, 2020, have been met met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520 (2019). 2. The criteria for a rating in excess of 40 percent rating for left lower extremity radiculopathy, prior to August 28, 2020, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to October 1981, and from August 1990 to October 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the matter was remanded for additional development. Following the Board’s remand, the Veteran was provided an opportunity to submit additional treatment records or authorization for VA to obtain any outstanding records, and was afforded an updated VA examination. For these reasons, the Board finds that there has been substantial compliance with its remand instruction. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). During the course of the Veteran's appeal, the RO assigned an increased 40 percent rating for left lower extremity radiculopathy, effective August 28, 2020. As higher ratings for the disability are available prior to and from this date, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Entitlement to an increased rating for left lower extremity radiculopathy, rated as 20 percent disabling prior to August 28, 2020, and as 40 percent disabling from August 28, 2020 The Veteran contends that he is entitled to an increased rating for his left lower extremity radiculopathy. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation 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 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). As the Veteran has already been awarded staged ratings for this disability, the Board will consider the propriety of the rating at each stage. The Veteran's radiculopathy of the left lower extremity is rated as 20 and 40 percent disabling pursuant to the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8520. This diagnostic code provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Turning to the evidence, on VA spine examination in February 2013, the Veteran reported pain in the low back radiating to the left buttock. He stated that the numbness was constant in the buttock and it radiated down to the thigh and the medial 3 toes on the left. His back and radiculopathy condition were a source of daily pain, increased on flare-ups, and affected his lifting, carrying, and sitting. Standing and moving around seemed to help. Muscle strength testing revealed normal strength for left hip flexion, knee extension, ankle plantar flexion, and ankle dorsiflexion (5/5). Left great toe extension was 4/5. The Veteran did not have muscle atrophy. A reflex examination of the left lower extremity yielded normal findings. On sensory examination, sensation was decreased in the left upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. A straight leg raising test was negative. Signs and symptoms of radiculopathy included mild constant pain, moderate intermittent pain, and moderate paresthesias/dysesthesias. An assistive device was not used. The examiner indicated moderate left sciatic nerve radiculopathy. A VA peripheral nerves examination from February 2013 reflects the Veteran’s report of mild left leg constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness. Muscle strength testing was normal, except for knee extension, ankle plantar flexion, and ankle dorsiflexion (4/5). No muscle atrophy was present. Reflexes were normal except for hypoactive reflexes at the left ankle. Sensation was decreased in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. There was loss of hair along the peroneal aspect of the left leg attributable to peripheral neuropathy. The Veteran’s gait was antalgic. The examiner indicated moderate incomplete paralysis of the sciatic nerve. The examiner diagnosed left lower extremity radiculopathy. With respect to impact on work, the examiner noted that the left leg symptoms could last all day and he had to take it easy with walking when they occurred. In a February 2013 statement, the Veteran reported that he experienced permanent numbness from the back of the upper leg to the top of the and first 3 toes. The numbness did not involve the entire region of the leg, but impaired walking as far as balance and all-over leg strength. He also reportedly experienced tingling in both legs when sitting and muscle cramps. In a June 2013 statement, the Veteran indicated that he experienced reduced sensation, numbness, tingling, muscle spasm, cramping, an altered gait, and problems with tripping especially when going up steps. Also, lifting his leg was difficult and required him to assist with his arms when negotiating obstacles or climbing in and out of vehicles. He also noted that his left leg was cold to touch and his great toe and the two toes next to it were without feeling. Both legs became fatigues when walking or standing for long periods of time, and these problems occurred on a daily basis. Along with his VA Form 9, the Veteran submitted a statement in May 2014 indicating that sitting and standing were only possible for short periods. Longer periods of standing escalated to a loss of feeling in the areas above the ankles, cramping, and periodic leg collapse. A November 2015 VA outpatient treatment report reflects positive weakness, numbness, tingling, and muscle spasm in the left leg. A December 2015 report from Harrisonburg Medical Associates reflects that the Veteran remained symptomatic in regard to significant numbness over the lateral aspect of the left leg radiating down the anterior part of the left lower leg, left anterior foot, and left first through third toes. He maintained employment and played golf. Objectively, the examiner observed some slight atrophy of the left calf. Reflexes were 3+ at the knees but absent at the ankles. Vibratory sensation was significantly diminished, particularly in the left foot. He had difficulty performing a tandem gait and his Romberg was positive. The clinical impression was suspected progressive peripheral neuropathy of unclear etiology with perhaps progressive lumbar spinal stenosis. He clearly had dysfunction either of the left L5 nerve root or left peroneal nerve, or both. The Veteran subsequently understand EMG and nerve conduction studies, which revealed lumbar spinal stenosis and left peroneal neuropathy. He had 80 percent loss of left peroneal motor function and some degree of underlying generalized sensory polyneuropathy. On VA back examination in July 2017, the Veteran reported chronic daily sharp pain in the lumbar region that occasionally radiated down the left buttock down the back of his leg, but not beyond the back of the knee. He noted that he saw a chiropractor every two weeks. A muscle strength examination of the left lower extremity revealed normal strength for hip flexion, knee extension, and ankle flexion, with reduced (4/5) findings for ankle dorsiflexion and great toe extension. The Veteran had atrophy of the anterior tibialis and weakness with dorsiflexion of the left foot and great toe, which the examiner indicated was caused by left peroneal neuropathy and was unrelated to the lumbar spine condition. A reflex examination was normal for the left knee, but reflexes were absent in the left ankle. Sensation was normal and a straight leg raising test was negative. Radicular pain or symptoms were not indicated. The examiner noted that the Veteran’s symptoms were not caused by a neuroanatomical impingement of the lumbosacral spine (radiculopathy) but rather a neuroanatomic impingement or injury at the knee (peroneal neuropathy). This peroneal neuropathy was not related to his lumbosacral spine condition. A November 2019 opinion reflects that the reviewing neurologist had reviewed the Veteran’s medical records for determination as to whether the Veteran’s symptomatology was associated with the service-connected radiculopathy or with left-sided peroneal neuropathy. The examiner noted that the Veteran’s record and objective testing supported diagnosis of both disabilities. The examiner noted that the Veteran’s symptoms of left lower extremity atrophy and weakness were likely multifactorial with both his neuropathy and lumbar radiculopathy contributing. As noted by previous neurologists, both conditions are likely contributing to his left lower extremity symptoms. MRI of the lumbar spine showed evidence of L4-L5 disc herniation, which the examiner indicated can produce the symptoms experienced. In addition, his nerve conduction studies/EMG showed peroneal neuropathy, which can also produce weakness and atrophy. Therefore, the examiner concluded that both factors were contributing to the Veteran’s condition. On VA peripheral nerves examination in August 2020, the Veteran endorsed left leg symptoms of moderate constant pain, severe intermittent pain, moderate paresthesias, and moderate numbness. On muscle strength testing, left knee extension, ankle plantar flexion, and ankle dorsiflexion were full (5/5). The Veteran did not have muscle atrophy. Left lower extremity reflexes were normal. Sensation was decreased in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. There were no trophic changes attributable to peripheral neuropathy. The Veteran’s gait was described as normal. The examiner noted moderately severe incomplete paralysis of the sciatic nerve. The examiner indicated that an assistive device was not used as a normal mode of locomotion. No other pertinent findings related to the left lower extremity were indicated. With respect to functional impact, the Veteran’s lumbar radiculopathy symptoms of pain and numbness were noted to impair his ability to stand, bend, sit, and walk for prolonged periods of time. Upon review of the evidence, the Board notes that it appears that at least some of the Veteran’s left leg symptomatology may be attributed to his non-service connected peroneal neuropathy. In an attempt to clarify which of the Veteran’s symptoms were attributable to radiculopathy, the November 2019 reviewing neurologist indicated that both conditions likely contributed to his symptoms. Where it is unclear what condition is the cause of a particular symptom or disability, VA must apply the benefit of the doubt to attribute the symptoms to a service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, to the extent that these symptoms cannot be distinguished, the Board will consider them in the rating assigned for left lower extremity radiculopathy. Based upon the foregoing, the Board finds that the aforementioned evidence supports entitlement to a 40 percent evaluation throughout the appeal period. In reaching this determination, the Board notes that the evidence has varied. With respect to the period prior to August 28, 2020, the Board notes that the symptoms and findings reported on examination at that time appear consistent with those reported on examinations and in various statements prior to the August 2020 examination. The Veteran has consistently reported cramping, numbness, difficulties with walking and standing, and pain, as noted in written statements from 2013 and 2014. VA examinations in 2013 and 2017 and a private report from 2015 document some abnormal findings on reflex, muscle strength, and sensory examinations, and gait difficulties. Again, as it is unclear as to whether these symptoms are attributable solely to the Veteran’s left leg radiculopathy, so the Board has resolved reasonable doubt in the Veteran’s favor in this regard. However, the Board also finds that a rating in excess of 40 percent for either period is not warranted. While strength is diminished in certain respects, 4/5 or 5/5 strength has been present on all examinations throughout the appeal period. Similarly, sensation have been diminished but not completely absent. Reflexes have been noted to be absent at the ankle on some examinations but not all, and have been present at the knee. In addition, none of the VA examiners has found more than moderate to moderately severe incomplete paralysis of the sciatic nerve in the left lower extremity. Likewise, while atrophy has been noted on occasion, marked muscle atrophy has not been indicated. Based on the foregoing, the Board finds that the criteria for a 60 percent rating, which requires severe incomplete paralysis with marked muscular atrophy, have not been more nearly approximated. For the foregoing reasons, the Board concludes that a 40 percent rating, but no higher, for left lower extremity radiculopathy is warranted for the entire appeal period. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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)." In sum, there is no basis for staged ratings of the Veteran's service-connected disability, as his symptoms have been primarily the same throughout the appeal period. In this regard, the Board finds that a uniform, 40 percent rating for left lower extremity radiculopathy, prior to and from August 28, 2020, is warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. E. Wilkerson, 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.