Citation Nr: 21071895 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 12-26 303 DATE: December 1, 2021 ORDER From March 2, 2010, entitlement to an increased initial rating of 40 percent, but no higher, for right lower extremity radiculopathy (sciatic nerve) is granted, subject to the laws and regulations governing monetary benefits. From March 2, 2010, entitlement to an increased initial rating of 40 percent, but no higher, for left lower extremity radiculopathy (sciatic nerve) is granted, subject to the laws and regulations governing monetary benefits. From March 2, 2010, entitlement to an increased initial rating of 30 percent, but no higher, for right lower extremity radiculopathy (femoral nerve), is granted, subject to the laws and regulations governing monetary benefits. From March 2, 2010, entitlement to an increased initial rating of 30 percent, but no higher, for left lower extremity radiculopathy (femoral nerve), is granted, subject to the laws and regulations governing monetary benefits. FINDINGS OF FACT 1. The most probative evidence reflects that, throughout the appeal period (from March 2, 2010, to the present), the manifestations of the Veteran's service-connected radiculopathy of the right sciatic nerve were not wholly sensory, and most closely approximated "moderately severe" incomplete paralysis of the nerve. 2. The most probative evidence reflects that, throughout the appeal period (from March 2, 2010, to the present), the manifestations of the Veteran's service-connected radiculopathy of the left sciatic nerve were not wholly sensory, and most closely approximated "moderately severe" incomplete paralysis of the nerve. 3. The most probative evidence reflects that, throughout the appeal period (from March 2, 2010, to the present), the manifestations of the Veteran's service-connected radiculopathy of the right anterior crural (femoral) nerve were not wholly sensory, and most closely approximated "severe" incomplete paralysis of the nerve. 4. The most probative evidence reflects that, throughout the appeal period (from March 2, 2010, to the present), the manifestations of the Veteran's service-connected radiculopathy of the left anterior crural (femoral) nerve were not wholly sensory, and most closely approximated "severe" incomplete paralysis of the nerve. CONCLUSIONS OF LAW 1. The criteria for a 40 percent, but no higher, initial evaluation for the Veteran's service-connected radiculopathy of the right sciatic nerve have been met from March 2, 2010, to the present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 2. The criteria for a 40 percent, but no higher, initial evaluation for the Veteran's service-connected radiculopathy of the left sciatic nerve have been met from March 2, 2010, to the present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 3. The criteria for a 30 percent, but no higher, initial evaluation for the Veteran's service-connected radiculopathy of the right anterior crural (femoral) nerve have been met from March 2, 2010, to the present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8526. 4. The criteria for a 30 percent, but no higher, initial evaluation for the Veteran's service-connected radiculopathy of the left anterior crural (femoral) nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to May 1978 with subsequent service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO). In January of 2017, the Veteran testified at a Board videoconference hearing before a Veterans Law Judge (VLJ) that has since retired. A transcript of the proceeding is of record. Consequently, in a December 2020 letter, the Board offered the Veteran an opportunity to testify at an additional, optional hearing before a VLJ who would ultimately decide his case. The Veteran did not respond to that letter and it was not returned as undeliverable; therefore, the Board proceeded with adjudication of these matters. These matters were first remanded by the Board in June 2017 for further development, and subsequently, in November 2020, the Board increased the Veteran's rating for his lumbar spine disability to 40 percent disabling throughout the appeal period; denied ratings in excess of 20 percent for left and right lower extremity radiculopathy prior to March 25, 2016, and increased ratings for each extremity to 40 precent disabling thereafter. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court), and in a December 2020 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board's prior favorable findings would not be disturbed, but that vacatur and remand were required to determine whether higher ratings were warranted. The JMPR specifically stated that the Board failed to provide an adequate statement of reasons or bases by failing to discuss whether separate ratings were warranted for the Veteran's bilateral lower extremity radiculopathy, to include a separate rating under impairment of the femoral nerve. Consequently, these matters were remanded by the Board in June 2021 for new VA examinations. In a July 2021 rating decision, the RO granted the Veteran service connection for right and left lower extremities radiculopathy for the femoral nerve, effective March 2, 2010, which is the beginning of the appeal period. As the evaluations assigned for this disability are less than the highest available and as the Veteran is presumed to be seeking the maximum award, increased evaluations for this disability are also before the Board. AB v Brown, 6 Vet. App. 35 (1993 Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Under Diagnostic Code 8520, complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the nerve warrants a 60 percent evaluation if it is severe with marked muscular atrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. Under Diagnostic Code 8526, complete paralysis of the anterior crural (femoral) nerve is rated 40 percent disabling, severe incomplete paralysis is rated 30 percent disabling, moderate incomplete paralysis is rated 20 percent disabling. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term "incomplete paralysis" 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 the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Court recently held in Miller v. Shulkin, 28 Vet. App. 376 (2017), that the language of 38 C.F.R. § 4.124a provides for a maximum 20 percent rating for peripheral neuropathy when the involvement is wholly sensory. Pursuant to 38 C.F.R. § 4.123, however, the maximum rating that may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis, i.e., no more than 40 percent. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. 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. The use of terminology such as "moderate" or "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. The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id. at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." 1. Entitlement to a rating in excess of 20 percent prior to March 25, 2016, and in excess of 40 percent thereafter for left lower extremity radiculopathy. 2. Entitlement to a rating in excess of 20 percent prior to March 25, 2016, and in excess of 40 percent thereafter for right lower extremity radiculopathy. 3. Entitlement to a rating in excess of 20 percent for radiculopathy, left lower extremity femoral nerve, effective March 2, 2010. 4. Entitlement to a rating in excess of 20 percent for radiculopathy, right lower extremity femoral nerve, effective March 2, 2010. The Veteran and his representative assert that the manifestations of his service-connected radiculopathy of the bilateral sciatic and femoral nerves are more significant than reflected by the currently assigned initial evaluations. As analysis of these appealed issues entails application of similar diagnostic criteria to congruent facts, the Board will discuss them together for the sake of economy. The Veteran's service-connected radiculopathy of the paired (bilateral) sciatic and anterior crural (femoral) nerves are currently evaluated under the criteria of 38 C.F.R. § 1.124A, Diagnostic Codes 8520 and 8526, pertaining to paralysis (complete or incomplete) of the individual sciatic and anterior crural (femoral) nerves, respectively. As these matters involve the propriety of assigned initial evaluations for these service-connected disabilities, the appeal period for consideration by the Board is from March 2, 2010, (the date of the awards of service connection for these disabilities) to the present. For the reasons discussed below, the Board concludes that the most probative evidence of record bolsters this contention, resulting in a noted partial allowance of the benefits sought regarding each appealed issue. May 2010 Spine Examination With regards to relevant examinations involving the Veteran's radiculopathy disabilities, pertinent facts were first reported during a May 2010 spine examination, documenting tingling of the Veteran's bilateral lower extremities. However, the affected nerves that were impaired were not specifically noted. There was a noted report of numbness, paresthesias, leg or foot weakness, falls, symptoms of fatigue, decreased motion, stiffness, weakness and an abnormal analgic gait. The Veteran reported that he uses a cane, and that he has experienced walking limitations due to his radiculopathy (can only walk a few yards at a time); also, that he takes pain medications which he did not find effective. July 2012 Spine Examination At a July 2012 VA examination, the examiner noted involvement of the femoral nerve bilaterally. Specifically, that the Veteran has radicular pain or other signs/symptoms of radiculopathy, which were reported as follows: right lower extremity moderate constant pain (may be excruciating at times); bilateral moderate intermittent pain (usually dull); bilateral moderate paresthesias and/or dysesthesias; bilateral moderate numbness; involvement of bilateral L2/L3/L4 nerve roots (femoral nerve). Severity of the Veteran's radiculopathy was reported as bilaterally moderate. His muscle strength was noted as normal with no muscle atrophy, and reflex and sensory examinations were also normal; his bilateral straight leg testing was positive. The Veteran's reported constant use of a cane was noted. The Veteran also reported that he had difficulty stooping, bending, lying, prolonged walking and climbing, and that his back disability negatively impacted his ability to perform his work functions at an animal clinic, which specifically included lifting animals. March 2016 Examination At a March 2016 VA examination, the examiner noted involvement of both the femoral and sciatic nerves bilaterally. The Veteran reported experiencing radiation of pain and numbness going down both legs to the feet, and that he experienced such every day, with the numbness being constant. Decreased sensation to light touch was noted in the Veteran's lower leg/ankle (L4/L5/S1) and foot/toes (L5), but straight bilateral leg raising test was positive. The following pertinent facts was also specifically reported: bilateral moderate constant pain (may be excruciating at times); bilateral severe intermittent pain (usually dull); Bilateral severe paresthesias and/or dysesthesias; bilateral severe numbness; bilateral involvement of L2/L3L/L4 nerve roots (femoral nerve) and bilateral involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve). As to functional impairment, the Veteran reported that he uses a cane most of the time, that he has experienced falling, that he is unable to walk long distances, unable to run, and experiences difficulty climbing. Further, that he uses Hydrocodone to manage his pain. August 2017 Spine Examination During this examination, impairment of the sciatic nerve, but not the femoral nerve was reported, and only with regards to the Veteran's left leg. Muscle spasm of the of the thoracolumbar spine resulting in an abnormal gait and left leg atrophy was reported; Moderate LLE radiculopathy noted in all categories, except for mild numbness. Decreased sensation to light touch was noted in the Veteran's left lower leg/ankle and left foot/toes, and the examiner noted that she was unable to perform the straight leg raising test. The Veteran's reported that he constantly uses a cane and that he has experienced balancing issues. Further, that he was no longer able to perform his work duties which included bending, stooping, extended walking and extended sitting, and consequently, he had to leave his job. July 2021 Peripheral Nerves Conditions Examination The Veteran's most recent examination was in July 2021. During this Peripheral Nerves Conditions examination, the examiner noted that the Veteran's radiculopathy, left lower extremity and radiculopathy, right lower extremity, onset was reported by the Veteran as a gradual 2006 onset of numbness to both lower extremities, and that he is currently taking Gabapentin ans Hydrocodone for pain management. The examiner reported the Veteran's bilateral lower extremity (RLE) symptoms related to both his sciatic and femoral (anterior crural) nerve as moderate incomplete paralysis. As to his functional impairment, the Veteran reported that he is unable to perform any occupational task due to weakness and risk of falling. Although this examiner reported that the Veteran does not use any assistive devices, he also noted that the Veteran has an ataxic gait, noting that it is probably due to his back disorder. Treatment Records The Veteran's ongoing treatment records reflect his history of consistent complaints of low back pain, radiculopathy pain, and functional impairment with daily and leisurely activities. During a September 2019 physical evaluation, the Veteran denied drop foot or inability to dorsiflex the foot symptoms. Reconciliation of Inconsistent Findings The Board acknowledges inconsistencies in the VA examinations of record with regards to whether the sciatic and/or femoral nerves are associated with the Veteran's radiculopathy. Consequently, in its June 2021 remand, the Board requested that the VA examiner specifically comment with regards to the fact that the affected nerve was not identified in the May 2010 VAX; whereas just the femoral nerve was identified in the July 2012 VAX; both the sciatic and femoral nerves identified during the March 2016 VAX; and only the sciatic nerve during the August 2017 VAX. The July 2021 VA examiner provided the following response: On physical exam subjective and objective evidence consistent w/ sciatic and femoral nerve involvement. Further, with regards to the progression of the Veteran's sciatic and femoral radiculopathy, the examiner stated the following: Veteran is service connected for RADICULOPATHY, LEFT LOWER EXTREMITY; RADICULOPATHY, RIGHT LOWER EXTREMITY. Femoral nerve involvement is now included along with sciatic nerve involvement in the bilateral lower extremities radiculopathy. It is an expected progression due to inflammation irritating nerves of lumbar spine. The veteran is also diagnosed with bilateral upper extremity radiculopathy based on upper extremity exam findings which would be cervical related and not due to or related to the service connected lower extremity radiculopathy. Since the examiner has acknowledged a progression and did not rule out an impairment of either the sciatic and femoral nerve resulting in radiculopathy at any time during the appeal period, and involvement of both nerves was noted as early as during the May 2010 spine examination, in giving the Veteran the benefit of the doubt, the Board finds that the onset and gradual progression of the Veteran's sciatic and femoral radiculopathy has existed throughout the appeal period. Moreover, as reflected in the examinations report cited above, the Board finds that the manifestations of the Veteran's service-connected radiculopathy of the bilateral sciatic and femoral nerves were beyond "wholly sensory" throughout the entirety of the appeal period, as it has always been characterized by functional impairment. As the finder of fact, the Board concludes that this evidence most closely approximates at least "moderately severe" incomplete paralysis of the paired (bilateral) sciatic nerves and "severe" incomplete paralysis of the bilateral anterior crural (femoral) nerves throughout the appeal period. As such, the criteria for separate 40 percent initial evaluations for radiculopathy of the left and right sciatic nerves and separate 30 percent initial evaluations for the left and right anterior crural (femoral) nerves are met, and the Veteran's appeal is granted to this extent. With regards to the Veteran's bilateral lower extremity radiculopathy of his femoral nerve, pursuant to DC 8526, complete paralysis of the anterior crural (femoral) nerve, such as, due to the loss of quadriceps muscle function, was not reported at any time during the appeal period to warrant consideration of the highest maximum rating of 40 percent. Therefore, a preponderance of the evidence is against the award of rating in excess of 30 percent. Similarly, as to the Veteran's bilateral lower extremity radiculopathy of his sciatic nerve, pursuant to DC 8520, the Board finds that the Veteran is not entitled to a disability rating in excess of 40 percent, as at no point during this period of appeal is there evidence to support a finding that the Veteran's disability was manifested by severe (with marked muscular atrophy) incomplete paralysis or complete paralysis of the sciatic nerve, such as a foot droop, to warrant a higher rating of 60 percent and above. In this regard, although the Veteran has consistently used a cane, except for more recently (use of cane not noted during the July 2021 examination, but ataxic gait noted), motor examination results of 4/5 for both right and left ankle movement clearly does not support such a finding, and not more than moderate incomplete paralysis was reported during any of the examinations of record, including the most recent examination. As such, the benefit of the doubt doctrine is not applicable as to this aspect of the Veteran's increased rating claim as a preponderance of the evidence is against the award of a higher rating in excess of 40 percent for the Veteran's bilateral radiculopathy disability associated with his sciatic nerve. Regarding the issue of entitlement to TDIU that was raised on record during the Veteran's August 2017 VA examination, the Agency of Original Jurisdiction (AOJ) granted entitlement to TDIU in an October 2020 rating decision, effective May 30, 2015. Prior to that date, the Veteran was employed full-time. Therefore, entitlement to TDIU prior to May 30, 2015, is not before the Board. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, 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.