Citation Nr: 21073915 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 20-14 031 DATE: December 13, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy affecting the sciatic nerve associated with lumbar spondylosis is denied for the period prior to August 30, 2018. Entitlement to a disability rating of 40 percent for left lower extremity radiculopathy affecting the sciatic nerve associated with lumbar spondylosis is granted for the period from August 30, 2018 to May 24, 2021. Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy affecting the sciatic nerve associated with lumbar spondylosis is denied for the period from May 24, 2021 onward. Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy affecting the femoral nerve associated with lumbar spondylosis is denied. Entitlement to a compensable disability rating for left lower extremity radiculopathy affecting the obturator nerve associated with lumbar spondylosis is denied. Entitlement to a compensable disability rating for left lower extremity radiculopathy affecting the cutaneous nerve associated with lumbar spondylosis is denied. Entitlement to a compensable disability rating for left lower extremity radiculopathy affecting the illio-inguinal nerve associated with lumbar spondylosis is denied. FINDINGS OF FACT 1. For the period prior to August 30, 2018, the preponderance of the evidence indicates that the Veteran's left lower extremity radiculopathy affecting the sciatic nerve resulted in no worse than moderate incomplete paralysis. 2. For the period from August 30, 2018 to May 24, 2021, the evidence indicates that the Veteran's left lower extremity radiculopathy affecting the sciatic nerve resulted in no worse than moderately severe incomplete paralysis, with accompanying generalized muscle atrophy and weakness. 3. For the period from May 24, 2021 onward, the preponderance of the evidence indicates that the Veteran's left lower extremity radiculopathy affecting the sciatic nerve resulted in no worse than moderate incomplete paralysis. 4. The preponderance of the evidence indicates that the Veteran's left lower extremity radiculopathy affecting the femoral nerve resulted in no worse than moderate incomplete paralysis. 5. The preponderance of the evidence indicates that the Veteran's left lower extremity radiculopathy affecting the obturator nerve resulted in no worse than moderate incomplete paralysis. 6. The preponderance of the evidence indicates that the Veteran's left lower extremity radiculopathy affecting the cutaneous nerve resulted in no worse than moderate incomplete paralysis. 7. The preponderance of the evidence indicates that the Veteran's left lower extremity radiculopathy affecting the illio-inguinal nerve resulted in no worse than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. For the period prior to August 30, 2018, the criteria for entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy affecting the sciatic nerve associated with lumbar spondylosis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. 2. For the period from August 30, 2018 to May 24, 2021, the criteria for entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy affecting the sciatic nerve associated with lumbar spondylosis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8520. 3. For the period from May 24, 2021 onward, the criteria for entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy affecting the sciatic nerve associated with lumbar spondylosis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8520. 4. The criteria for entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy affecting the femoral nerve associated with lumbar spondylosis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8526. 5. The criteria for entitlement to a compensable disability rating for left lower extremity radiculopathy affecting the obturator nerve associated with lumbar spondylosis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8528. 6. The criteria for entitlement to a compensable disability rating for left lower extremity radiculopathy affecting the cutaneous nerve associated with lumbar spondylosis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8529. 7. The criteria for entitlement to a compensable disability rating for left lower extremity radiculopathy affecting the illio-inguinal nerve associated with lumbar spondylosis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8530. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1963 to December 1963. This case initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, the Veteran's claims for increased ratings were remanded by the Board in August 2021 for Stegall compliance. The Board finds that the RO has substantially complied with its remand directives, and it may now proceed with adjudication. Increased Rating Disability evaluations (ratings) 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 the 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. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. 38 C.F.R. § 4.124a. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. Diagnostic Codes 8526, 8626, and 8726 provide ratings for paralysis, neuritis, and neuralgia of the anterior crural (femoral) nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, and 30 percent are warranted, respectively, for mild, moderate, severe incomplete paralysis of the femoral nerve. A 40 percent rating is warranted with complete paralysis of the femoral nerve. 38 C.F.R. § 4.124a, DC 8526. Diagnostic Codes 8528-8530, 8628-8630, and 8728-8730, provide ratings for paralysis, neuritis, and neuralgia of the obturator, external cutaneous, and ilio-inguinal nerves. Neuritis and neuralgia are rated as incomplete paralysis. For each disability, a maximum 10 percent rating is warranted for severe incomplete paralysis or paralysis of the respective nerve. Mild or moderate impairment of each nerve (obturator, external cutaneous, and ilio-inguinal) warrant noncompensable ratings. 38 C.F.R. § 4.124a, DCs 8528-8530, 8628-8630, and 8728-8730. In rating diseases of the peripheral nerves, 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. 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 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The Veteran asserts that his service-connected radiculopathies of the lower extremities are more severe than is reflected by his current evaluations. In this case, there is no evidence of evidence of severe incomplete or complete paralysis of the sciatic or femoral nerves. There is also no evidence of severe incomplete or complete paralysis of the obturator, cutaneous, or illio-inguinal nerves in the left lower extremity. During the Veteran's July 2015 VA examination for back conditions, the VA examiner noted mild radiculopathy of the sciatic nerve in the left lower extremity. During the Veteran's August 2018 VA examination for peripheral nerve conditions, the VA examiner noted moderately severe incomplete paralysis of the sciatic nerve, but they did not indicate findings for the obturator, cutaneous, or illio-inguinal nerves in the left lower extremity. The also noted generalized muscle atrophy and weakness for both lower extremities. In a September 2018 addendum VA medical opinion, the examiner stated that all the distal nerves of the left lower extremity were affected by radiculopathy, and the forms of radiculopathy were mild to moderate in degree. December 2019 VA treatment records reflect an improvement in leg pain. April 2021 VA treatment records reflect decreased radiculopathy. During the Veteran's May 2021 VA examination for back conditions, the VA examiner noted mild to moderate radiculopathy of the sciatic nerve in the left lower extremity. During the October 2021 VA examination for peripheral nerve conditions, the VA examiner found moderate incomplete paralysis of the sciatic, femoral, obturator, cutaneous, and illio-inguinal nerves in the left lower extremity. The Veteran made regular use of crutches to assist with locomotion. The Veteran's VA treatment records are positive for treatment for radiculopathy and lower extremity pain; however, they are negative for evidence of severe incomplete paralysis or complete paralysis of the affected nerves. The Veteran has consistently asserted that the radiculopathies are more severe than is reflected by their current evaluations. While the Veteran is competent to observe his radiculopathy symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his radiculopathy symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the preponderance of the evidence is against the Veteran's claim for an increased rating for radiculopathy of the femoral nerve. There is no documented medical evidence of severe incomplete paralysis of the affected nerve. The Board has considered the Veteran's assertions, but it finds them outweighed by the medical evidence of record, especially the relevant VA examinations. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim. Accordingly, the claim for a disability rating in excess of 20 percent for the femoral nerve is denied. The Board finds that the preponderance of the evidence supports a 40 percent rating for the Veteran's radiculopathy of the sciatic nerve from August 30, 2018, the date of the VA examination indicating moderately severe incomplete paralysis, to May 24, 2021, the date of the VA examination confirming his radiculopathy had improved and was consistent with mild to moderate incomplete paralysis. While the September 2018 addendum VA opinion indicated that all forms of radiculopathy were mild to moderate in degree, this contradicts the findings of the August 2018 examination, which also showed generalized muscle atrophy and weakness (i.e., symptoms that are more than sensory in nature). No explanation was provided, so the Board finds the addendum opinion to be of less probative weight than the original examination regarding the sciatic nerve. Additionally, while subsequent VA treatment records indicate improvement in radiculopathy symptoms, it is not clear that the Veteran's symptoms had improved enough to not be considered moderately severe until the May 2021 VA examination. While the Board concludes that the preponderance of the evidence supports a finding that his sciatic nerve radiculopathy resulted in moderately severe radiculopathy during this period, there is no evidence of severe incomplete or incomplete paralysis during this period. For the periods before August 30, 2018 and after May 24, 2021, the Board finds that the preponderance of the evidence is against the Veteran's claim for an increased rating for radiculopathy of the sciatic nerve. During those periods, there is no evidence of moderately severe incomplete or complete paralysis of the sciatic nerve. The Board has considered the Veteran's assertions, but it finds them outweighed by the medical evidence of record, especially the relevant VA examinations. Accordingly, for the period prior to August 30, 2018, the Veteran's claim for a disability rating in excess of 20 percent for radiculopathy of the sciatic nerve is denied. For the period from August 30, 2018 to May 24, 2021, a disability rating of 40 percent for radiculopathy of the sciatic nerve is granted. For the period from May 24, 2021 onward, the claim for a disability rating in excess of 20 percent for radiculopathy of the sciatic nerve is denied. Next, the Board finds the preponderance of the evidence is against the Veteran's claims for increased ratings for radiculopathy of the obturator, cutaneous, and illio-inguinal nerves. There is no documented medical evidence of severe incomplete paralysis of the affected nerves. The Board has considered the Veteran's assertions, but it finds them outweighed by the medical evidence of record, especially the relevant VA examinations that are based upon objective testing. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claims. Accordingly, the claims for compensable ratings for the obturator, cutaneous, and illio-inguinal nerves are denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, Veteran is already in receipt of a total disability rating based on individual unemployability (TDIU) for the period on appeal. See August 2021 codesheet. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.