Citation Nr: 21070484 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-61 971 DATE: November 24, 2021 ORDER Entitlement to a rating of 40 percent, but not more, for right lower extremity radiculopathy is granted. FINDING OF FACT Throughout the period at issue, the Veteran's radiculopathy affecting the sciatic nerve of the right lower extremity is characterized by "moderately severe" incomplete paralysis; "severe" incomplete paralysis with marked muscular atrophy has not been demonstrated. CONCLUSION OF LAW The criteria for entitlement to a rating of 40 percent, but not more, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 40214a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1996 to June 1999. The Veteran appeared and testified at an April 2021 virtual teleconference hearing before the undersigned Veterans Law Judge. A transcript is of record. The Board of Veterans' Appeals (Board) remanded these matters in May 2021 to obtain updated medical records and medical opinions. The requested development has been completed, and the appeal has returned to the Board for further appellate consideration. The Board is now satisfied there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by applying a schedule of ratings, which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See. Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Entitlement to an increased rating for radiculopathy in the right lower extremity Throughout the period on appeal, the Veteran's right lower extremity radiculopathy has been assigned a 20 percent rating under DC 8520 (addressing impairment to the sciatic nerve). The Veteran contends that the symptoms of his right lower extremity radiculopathy merit increased ratings, and that he has experienced continuously worsening symptoms of chronic pain that radiates down his legs and, particularly in cold and poor weather conditions, prevents him from standing or walking for prolonged periods, climbing stairs, or performing physical labor, and can lead to minor urinary incontinence. He reported that his movement is severely limited or he is immobile on bad days. 38 C.F.R. § 4.124a, DC 8520: A rating of 20 percent is warranted when there is incomplete paralysis of the sciatic nerve that is "moderate" in nature; A rating of 40 percent is warranted when there is incomplete paralysis of the sciatic nerve that is "moderately severe" in nature; and A rating of 60 percent is warranted when there is incomplete paralysis of the sciatic nerve that is "severe" in nature with marked muscular atrophy. 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 on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is 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 of 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. After a review of the evidence of record, the Board finds that a rating of 40 percent, but not more, for the Veteran's radiculopathy of the sciatic nerve of the right lower extremity is warranted throughout the period at issue. First, the Veteran's credible statements throughout the period at issue indicate that he has difficulty walking or standing for prolonged periods, performing physical labor, or climbing stairs when he has bad days, which occur most often during cold weather months between November and April. During a March 2016 VA examination, the Veteran reported that he generally treats his increasing low back pain and radiculopathy to the right leg with over-the-counter medication, but he takes narcotic pain medication and muscle relaxers on bad days. Upon examination, the Veteran was noted to have "moderate" intermittent and constant pain in the right lower extremity, as well as "moderate" paresthesias and/or dysesthesias. Furthermore, his right knee and ankle reflexes were slightly diminished, and the examiner noted that he had "moderate" incomplete paralysis of the sciatic nerve. The examiner noted that his symptoms affect his ability to perform work because when the weather changes, the Veteran's back flares up and causes right lower extremity pain and tingling. As a result, he may need to stay home and rest until the symptoms improve. Although the examiner opined that the Veteran has only "moderate" incomplete paralysis of the sciatic nerve, the Veteran's credible statements indicate that his symptoms are more than simply sensory, as he has difficulty with mobility and standing due to the symptoms, which support that his incomplete paralysis is "moderately severe" in accordance with a 40 percent rating under DC 8520. However, the examination does not support a 60 percent rating because there is no evidence of "severe" incomplete paralysis with marked muscular atrophy, as the examiner noted the Veteran has full strength and no muscle atrophy. Similarly, the Veteran's medical treatment records from March 2016 fail to support a rating in excess of 40 percent under DC 8520, as a physical examination revealed normal pulses, an ability to heel walk and toe walk without difficulty, and a normal, steady gait with no assistive device or limp. This level of functioning does not demonstrate "severe" incomplete paralysis with marked muscular atrophy. Next, the Veteran underwent a VA examination in July 2021 and reported that he has chronic radiating low back pain, his ankle gives out, and he is unable to work some days. Again, the Veteran reported symptoms that include numbness, tingling, pain, and limitation of sensation in the legs and feet that inhibit his ability to stand or walk for prolonged periods, climb stairs, or perform general physical labor. He also reported that he experiences minor urinary incontinence during flare-ups and has to take oxycodone on bad days. Upon examination, the examiner noted that the Veteran has "moderate" constant pain, but that intermittently his pain is "severe." The Veteran was observed having "moderate" paresthesias and/or dysesthesias and numbness. The examiner determined that the Veteran's has "moderate" incomplete paralysis of the right sciatic nerve. However, the examiner also noted that the Veteran cannot sit too long, his pain wakes him up at night, and the ability to use his legs and ankles is greatly reduced during flare-ups, causing walking and standing limitations. They also noted that the Veteran's symptoms have worsened since his last examination. As the examiner noted that the Veteran has "moderate" incomplete paralysis of the right lower extremity sciatic during the examination, which was not conducted during a flare-up, and that he has reduced functioning in his leg and ankle during flare-up which leads to limitations in standing, walking, and climbing stairs, the Board finds that these functional limitations result in "moderately severe" incomplete paralysis during flare-ups, as his functional limitations are more than wholly sensory limitations. As such, a 40 percent rating under DC 8520 is warranted. However, because the examiner noted that the Veteran has full strength with no muscle atrophy, and there was no evidence of "severe" incomplete paralysis during the examination, the record does not support a 60 percent rating. Lastly, there is no evidence in the medical records or the Veteran's statements of symptoms that qualify as "severe" incomplete paralysis of the sciatic nerve with marked muscle atrophy under DC 8520. In considering the appropriate disability ratings, the Board has considered the Veteran's statements that his service-connected disorder is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The Board finds the Veteran's statements credible, as his reported symptoms have been consistent with medical records and VA examinations throughout the record, and there is no evidence to indicate that his statements lack credibility. However, while the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his right lower extremity radiculopathy according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1995); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. As such, a 40 percent rating, but not more, is warranted for radiculopathy of the right lower extremity throughout the period on appeal. There is no doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel