Citation Nr: 21071893 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-00 359 DATE: December 1, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to August 10, 2016 and in excess of 20 percent thereafter for left lower extremity radiculopathy is denied. Entitlement to a rating in excess of 10 percent prior to August 10, 2016 for right lower extremity radiculopathy is denied. Entitlement to a 20 percent rating for right lower extremity radiculopathy is granted from August 10, 2016, subject to the laws and regulations governing the payments of monetary benefits. FINDINGS OF FACT 1. During the appeal period, the Veteran's left lower extremity radiculopathy manifest by no more than mild incomplete paralysis prior to August 10, 2016 and no more than moderate incomplete paralysis thereafter. 2. During the appeal period, the Veteran's right lower extremity radiculopathy manifest by no more than mild incomplete paralysis prior to August 10, 2016 and no more than moderate incomplete paralysis thereafter. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left lower extremity radiculopathy prior to August 10, 2016 and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy prior to August 10, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for 20 percent rating, but no higher, for right lower extremity radiculopathy have been met from August 10, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1973 until February 1993. This appeal has been before the Board on several prior occasions, most recently in June 2021. The Board finds there has been substantial compliance with its prior remand directives and will proceed to adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. 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). The Veteran's bilateral lower extremity radiculopathies are evaluated as affecting the sciatic nerve and rated under 38 C.F.R. § 4.124a , DC 8520. Under that code, complete paralysis is rated at 80 percent (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost); severe incomplete paralysis with marked muscular atrophy, 60 percent; moderately severe incomplete paralysis, 40 percent; moderate incomplete paralysis, 20 percent, and; mild incomplete paralysis, 10 percent. Id. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When involvement is wholly sensory, the rating should be for mild, or at most, moderate degree. Note preceding diagnostic codes. 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, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 C.F.R. §§ 4.2, 4.6. Entitlement to a rating in excess of 10 percent prior to August 10, 2016 and in excess of 20 percent thereafter for left lower extremity radiculopathy. Entitlement to a rating in excess of 10 percent prior to March 4, 2021, and in excess of 20 percent thereafter for right lower extremity. The Veteran asserts that his lower extremity radiculopathies are more severe than currently evaluated. The Board previously remanded the claim for a medical opinion as to the date the lower extremity radiculopathies were first manifest. Subsequent to the remand, the Agency of Original Jurisdiction (AOJ) assigned separate 10 percent ratings for each lower extremity, effective September 30, 2010, the date of claim for service connection for the back disability. See August 2021 rating decision. Therefore, the issue before the Board is whether the Veteran is entitled increased ratings for any time since September 2010. For the left lower extremity, the Board concludes that the criteria for an increased is not met for any time during the appeal period. For the right lower extremity, a 20 percent rating is warranted from August 10, 2016, but a rating in excess of 10 percent prior to that date is not warranted. The claim has been pending since September 30, 2010. Private treatment records from the Georgia Spine Center show that Veteran was seen for a follow up appointment after lumbar spine surgery in June 2009 and complained of "numbness above the knees." Another note dated May 2011 noted left posterior leg pain. On VA neurological examination in March 2011, motor function was within normal limits; sensory examination was intact on both sides. The examiner noted right knee and ankle jerk as 2+; absent on the left. There was no paralysis. On examination of the spine, the examiner noted no sensory deficits, tested via pinprick, from L1-L5 or of S-1. A February 2012 VA treatment note states, "back pain is constant, waxes/wanes in severity, radiates into LLE." In a November 2012 statement, the Veteran's spouse said has "restless legs" and that he must rub and shake them. She also stated that the Veteran stumbles due to pain radiating "down his thigh to his knees and periodically to his leg." On VA examination in August 2016, muscle strength was normal (5/5) bilaterally for hip, knee, ankle and great toe; there was no ankylosis. Reflexes were hypoactive (1+) for the right knee and ankle; absent (0) for the left knee and ankle. There was decreased sensation in the right foot and toes; decreased sensation in the left thigh, knee, lower leg, ankle, foot, and toes. A straight leg test was negative on the right and positive on the left. Mild constant and intermittent pain were noted bilaterally. Moderate paresthesias and/or dysesthesias and mild numbness were noted bilaterally. The examiner characterized the radiculopathy as moderate in severity bilaterally. In January 2020, the Veteran testified at a hearing before the Board. The Veteran provided sworn testimony that he feels the symptoms of his radiculopathy from his hip to his toes and that his symptoms have worsened in severity. Specifically, the Veteran testified that his symptoms interrupt his sleep and preclude him from sitting or standing for long periods of time. On October 2020, VA peripheral nerve examination, the Veteran reported pain radiating from his back "down into the left and right side." The examiner recorded his symptoms of mild constant pain, paresthesias and/or dysesthesias, and numbness in his both legs. Muscle strength was all normal (5/5), with no muscle atrophy or trophic changes. Deep tendon reflexes and sensory examinations were normal for both legs. The examiner characterized the bilateral lower extremity radiculopathy as mild incomplete paralysis of the sciatic nerve, bilaterally. On VA nerve examination in March 2021, the examiner noted moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness on the right. Mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness on the left. Muscle strength was all normal (5/5), with no muscle atrophy or trophic changes. Deep tendon reflexes were normal (2+) for both knees and ankles. There was decreased sensation in the thigh/knee on the right, and the lower leg/ankle and foot/toes, bilaterally. The examiner characterized the lower extremity radiculopathy as moderate incomplete paralysis of the sciatic nerve on the right; mild on the left. Left lower extremity Based on a review of the record, the Board concludes that the Veteran's left lower extremity radiculopathy manifest as mild symptoms prior to August 10, 2016 (the date of the VA examination) and moderate symptoms thereafter. Prior to August 2016, the Veteran's symptoms manifested as wholly sensory with the Veteran experiencing pain that radiated into lower leg as well as burning and tingling. Knee and ankle jerk were absent, but motor function was normal and there were no sensory deficits. The criteria for a higher, 20 percent rating, are not met or more closely approximated prior to August 2016. The 20 percent rating assigned was effective the date of the VA examination that showed moderate incomplete paralysis of the sciatic nerve. The criteria for a higher, 40 percent rating for moderately severe incomplete paralysis are not met or more closely approximated. Reflexes were absent in the knee and ankle, but muscle strength was normal, with no atrophy. That examiner characterized the severity as moderate. Although the October 2020 and March 2021 VA examiners each characterized the left lower extremity radiculopathy as mild, Board concludes the objective findings and the Veteran's report of subjective symptoms are contemplated by the currently assigned 20 percent rating. Therefore, the claim for a rating in excess of 10 percent prior to August 10, 2016 and in excess of 20 percent thereafter for left lower extremity radiculopathy is denied. Right lower extremity Based on a review of the record, the Board concludes that the right lower extremity radiculopathy manifest as mild symptoms prior to August 10, 2016 and moderate symptoms from that date. The criteria for a rating in excess of 10 percent prior to August 10, 2016 are not met or more closely approximated. The Veteran's symptoms were wholly sensory prior to August 10, 2016. Prior to that date, motor and objective sensory testing was normal. Absent increased sensory and/or reflex changes, moderate severity is not shown. However, from the August 10, 2016 VA examination, the criteria for a 20 percent rating for moderate severity are met, but no higher. The examiner characterized the severity as moderate. There was some decreased sensation over the right foot and toes, but muscle strength was normal. The October 2020 VA examination showed improvement with the examiner classifying the severity as mild. However, functional limitations remained during the October 2020 exam and the March 2021 examiner again characterized the condition as moderate. The criteria for a higher, 40 percent rating for moderately severe incomplete paralysis are not met or more closely approximated. Reflexes were hypoactive, but muscle strength was normal, with no atrophy. Accordingly, the Board determines that the Veteran is entitled to a 10 percent disability rating prior to August 10, 2016 and a 20 percent rating thereafter for right lower extremity radiculopathy. This is a grant of the Veteran's claim for increased rating insofar as the 20 percent rating is established from August 2016. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.