Citation Nr: 21069358 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 14-34 354A DATE: November 18, 2021 ORDER An initial rating in excess of 10 percent prior to August 21, 2019, for right-sided sciatica is denied. A 20 percent rating, but not higher, for right-sided sciatica from August 21, 2019, through September 15, 2021, is granted, subject to the regulations governing the payment of monetary awards. A rating in excess of 20 percent from September 16, 2021, for right-sided sciatica is denied. FINDINGS OF FACT 1. For the period from May 6, 2019, through August 20, 2019, service-connected right-sided sciatica was manifested by symptoms analogous to no more than mild incomplete paralysis of the right sciatic nerve. 2. For the period beginning August 21, 2019, service-connected right-sided sciatica has more nearly approximated chronic radicular pain, as well as reports of numbness, but has not exhibited or more nearly approximated more than moderate reflex, muscle strength, or sensory defects on objective examination and there has been no showing of marked atrophy or impairment amounting to severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to August 21, 2019, for right-sided sciatica have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8520. 2. The criteria for a 20 percent rating, but no higher, for right-sided sciatica from August 21, 2021, have been met. 38 U.S.C. §§1155, 5017; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8420. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to April 1969. The Veteran testified at a hearing before the undersigned in July 2018. This matter was remanded by the Board in March 2021 for additional development. Initial Ratings for Right-Sided Sciatica Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve, a 20 percent rating for moderate incomplete paralysis, and a 40 percent rating is for moderately severe incomplete paralysis. A 60 percent rating is warranted where there is severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A maximum 80 percent will be assigned where there is complete paralysis of the sciatic nerve, where 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. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The introductory language to the schedule of ratings pertaining to diseases of the peripheral nerves states that when involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. 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 Veteran is service-connected for right-sided sciatica. The initial (staged) ratings assigned are 10 percent disabling effective May 6, 2019, and 20 percent disabling effective September 16, 2021, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. A May 6, 2019, VA Back Disability Benefits Questionnaire (DBQ) notes the Veteran's history of right-sided sciatica. On examination, straight leg raising was positive on the right side. Muscle strength testing in the right lower extremity showed 4/5 strength in the hip, knee, ankle and great toe. There was no muscle atrophy and reflexes in the right leg were normal. Sensory examination was normal. Mild radiculopathy involving the right sciatic nerve (with symptoms of constant pain, paresthesias and/or dysesthesias, and numbness) was also noted. An August 21, 2019, VA Back DBQ notes that on examination, straight leg raising was positive on the right side. Muscle strength testing in the right lower extremity showed 5/5 strength in the hip, knee, ankle and great toe. There was no muscle atrophy and reflexes in the right leg were normal. Sensory examination showed decreased sensation to light touch throughout the right lower extremity. Moderate radiculopathy involving the right sciatic nerve (with symptoms of constant pain, paresthesias and/or dysesthesias, and numbness) was also noted. The Veteran denied using assistive devices to ambulate. A February 2020 VA Back DBQ notes that on examination, straight leg raising test was positive on the right. Muscle strength testing in the right lower extremity showed 4/5 strength in the hip, knee, ankle and great toe. There was no muscle atrophy. Reflexes were hypoactive (1+) in the right knee and ankle. Sensory examination was normal. The examiner stated the Veteran had no radicular pain, or other signs or symptoms due to radiculopathy. A November 2020 VA Back DBQ notes that on examination, straight leg raising test was negative on the right. Muscle strength testing in the right lower extremity showed 4/5 strength in the hip and knee, and 5/5 strength in the ankle and great toe. There was no muscle atrophy. Reflexes were hypoactive (1+) in the right knee and ankle. Sensation was decreased in the right lower leg and ankle. The examiner stated the Veteran had no radicular, pain, or other signs or symptoms due to radiculopathy. During a September 16, 2021, VA Peripheral Nerves Conditions examination, the Veteran reported his right-sided sciatica had gotten worse since its onset in service. Currently, he had pain and numbness from his right leg to his right foot that was aggravated by prolonged standing and walking. On examination, the Veteran reported severe, constant, right lower extremity pain and numbness, without paresthesias or dysesthesias. Muscle strength testing in the right lower extremity showed 5/5 strength in the hip, knee, ankle and great toe. There was no muscle atrophy and reflexes were all normal. Sensory examination was normal in the right lower extremity. There were no trophic changes. The Veteran used a cane to walk short distances and a walker for long distances due to his back disability and his sciatica. The examiner found the Veteran had moderate incomplete paralysis of the right sciatic nerve. A. Prior to August 21, 2019 In light of the probative evidence above, the Board finds that a rating higher than 10 percent is not warranted for the Veteran's service-connected right-sided sciatica for the or the initial rating period from May 6, 2019, through August 20, 2019. The evidence from this period did not show or approximate symptoms of moderate incomplete paralysis. As noted above, the evidence for this period shows that all clinical findings regarding motor functioning and reflexes of the Veteran's right lower extremity were normal on VA examination. Muscle strength was nearly normal (4/5 representing only mild impairment with active movement against some resistance) with no muscle atrophy. Accordingly, a rating greater than 10 percent is not warranted under Diagnostic Code 8520. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. Accordingly, the Veteran's claim for an initial rating in excess of 10 percent for service-connected right-sided sciatica prior to August 21, 2019, must be denied. 38 U.S.C. § 5107 (b); Gilbert, supra. B. Beginning August 21, 2019 In light of the probative evidence above, the Board finds that a 20 percent rating is warranted for the Veteran's service-connected right-sided sciatica from August 21, 2019, the date of the examination which shows worsening symptoms that more nearly approximate moderate incomplete paralysis. The August 21, 2019, VA examiner characterized the Veteran's disability as moderate incomplete paralysis, as noted above. However, from August 21, 2019, a rating in excess of 20 percent is not warranted. The evidence does not show that at any time during this period the Veteran's right sided sciatica was manifested by moderately severe symptomatology. As noted above, the VA examination reports for the period show objective findings of radiculopathy that were no more than moderate. Muscle strength was 4/5 or 5/5, with no muscle atrophy. Reflexes were mostly normal, with isolated findings of hypoactive reflexes in the knee and ankle. Sensation was normal or decreased, but not absent. Therefore, a rating in excess of 20 percent for service-connected right-sided sciatica is not warranted at any point. 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.