Citation Nr: 21068675 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-40 103A DATE: November 12, 2021 ORDER Entitlement to an initial rating of 40 percent for radiculopathy of the right lower extremity is granted. FINDING OF FACT Throughout the period of the appeal Veteran's radiculopathy of the right lower extremity manifests as moderately severe incomplete paralysis. CONCLUSION OF LAW The criteria for an initial rating of 40 percent for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2011 to January 2014. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board remanded the Veteran's appeal to the RO for further evidentiary development. The Board directed the Agency of Original Jurisdiction (AOJ) to readjudicate the claim on appeal considering all evidence received since July 2017, and the AOJ substantially complied, issuing a Supplemental Statement of the Case (SSOC) in July 2020. Entitlement to an initial rating in excess of 10 percent from January 21, 2016, and in excess of 20 percent from October 26, 2016, for radiculopathy of the right lower extremity. The Veteran's radiculopathy of the right lower extremity has been rated under the criteria of Diagnostic Code 8520. 38 C.F.R. § 4.124a, DC 8520. Under these criteria, mild incomplete paralysis of the sciatic nerve is to be rated as 10 percent disabling; moderate incomplete paralysis as 20 percent disabling; moderately severe incomplete paralysis as 40 percent disabling; and severe incomplete paralysis with marked muscular atrophy is to be rated as 60 percent disabling. Complete paralysis of the sciatic nerve is to be rated as 80 percent disabling. Complete paralysis is found in cases where the foot dangles and drops, there is no active movement possible in the muscles below the knee, and flexion of the knee is weakened or (rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id.; see Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. VA's Adjudication Manual gives the following guidance on cases where a peripheral nerve disability is only manifested by sensory impairment: "To make a choice between mild and moderate, consider the evidence of record and the following guidelines: The mild level of evaluation would be more reasonably assigned when sensory symptoms are recurrent but not continuous, assigned a lower medical grade reflecting less impairment and/or affecting a smaller area in the nerve distribution. Reserve the moderate level of evaluation for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are continuous, assigned a higher medical grade reflecting greater impairment, and/or affecting a larger area in the nerve distribution." VA Adjudication Procedures Manual, V.iii.12.A.2.b (September 23, 2021). Turning to the evidence, a VA examination for back conditions in February 2016 found that the Veteran had significantly reduced muscle strength in the right lower extremity, with hip flexion and knee extension only 3/5 normal, ankle plantar flexion 4/5 normal, ankle dorsiflexion 2/5 normal, and great toe extension normal. Deep tendon reflexes were hypoactive in the right knee and ankle. Sensation to light touch was normal in the right thigh and foot but decreased in the right knee and ankle. The Veteran's radiculopathy manifested in moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and severe numbness. The examiner found moderate incomplete paralysis of the right sciatic nerve. The Veteran underwent a Disability Benefits Questionnaire (DBQ) for Back Conditions in January 2017. The examiner diagnosed lumbar spondylosis with radiculopathy affecting the sciatic nerve for the right lower extremity. The Veteran reported right lower extremity pain which increased at times when he would "throw out his back," causing the muscles to "lock up." The Veteran's muscle strength in right hip flexion was 3/5, right knee extension was 4/5, ankle plantar flexion was 4/5, ankle dorsiflexion was 3/5, and great toe extension was 5/5. Deep tendon reflexes were normal in the right knee and ankle. Sensation to light touch was again normal in the right thigh and foot but decreased in the right knee and ankle. The straight leg raising test was positive for the right leg. The right lower extremity was in moderate constant pain and had mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. There were no other neurologic abnormalities. In his March 2017 Notice of Disagreement, the Veteran stated that the pain in his legs was severe and continuous throughout most of the day, and he reported numbness in his legs. Private treatment records show that the Veteran reported pain in his right leg in June 2016 and August 2017. A DBQ for back conditions was prepared in October 2019. The examiner completed an in-person examination and review of the VA e-folder. The Veteran reported flare ups resulting in severe pain radiating to the right buttocks and right thigh. Muscle strength testing was normal for right hip flexion, knee extension, ankle dorsiflexion and great toe extension. The deep tendon reflexes in the right knee and ankle were normal. Sensation to light touch was decreased in the right thigh, knee, and ankle, and normal in the right foot. A straight leg raising test was negative. The radiculopathy resulted in moderate constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness. Private treatment records in March and April 2019 note continued weakness in the lower extremities and numbness of the legs and feet. A May 2019 examination diagnosed radiculopathy of the lumbar region. Considering the evidence as a whole, the frequency, severity, and duration of the Veteran's symptoms more nearly approximate moderately severe incomplete paralysis of the right lower extremity. The examination reports have primarily described the Veteran's continuous pain, intermittent pain, paresthesias and/or dysesthesias, and numbness as moderate or severe. Significantly, the Veteran's muscle strength and reflexes were diminished in the first two examinations; therefore, the Veteran's symptoms were not wholly sensory. The Veteran has also reported flare ups resulting in severe pain and the muscles locking up. As such, a rating of moderately severe incomplete paralysis is warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A higher rating for severe incomplete paralysis is not warranted. The Veteran's symptoms were not primarily described as severe and he has only described severe pain during flare ups. The three examinations found no muscle atrophy and the Veteran has not claimed to have muscle atrophy; severe incomplete paralysis normally includes marked muscle atrophy. Id. Therefore, a higher rating for severe incomplete paralysis is not appropriate. The evidence also does not show complete paralysis of the right lower extremity. Complete paralysis describes cases where "there is no active movement possible in the muscles below the knee, and flexion of the knee is weakened or (rarely) lost." Id. The examinations have shown active movement in the Veteran's right ankle and toes. The Veteran's symptoms do not more nearly approximate complete paralysis of the right lower extremity. The Board has also considered whether staged ratings are appropriate in this case. Giving the Veteran the benefit of the doubt, the Veteran's symptomatology was most nearly approximated by moderately severe incomplete paralysis throughout the appeal period. Therefore, assigning a staged rating is not warranted in this case. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.