Citation Nr: 21075383 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 06-06 214 DATE: December 20, 2021 ORDER Entitlement to an initial rating of 30 percent, but no higher, for radiculopathy of the femoral nerve of the right lower extremity is granted. FINDING OF FACT Throughout the appeal period, the right femoral nerve has most closely approximated severe, incomplete paralysis. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 30 percent for right lumbar radiculopathy of the femoral nerve have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.68, 4.124a, DC's 8520, 8526, 8528, 8529, 8530 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1971 to August 1993. This issue is on appeal from an August 2005 rating decision, which, in part, increased the Veteran's disability rating for the chronic lumbar strain. In the September 2017 decision, the Board of Veterans' Appeals (Board) added the issues of entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity and entitlement to a separate evaluation for radiculopathy of the left lower extremity to the current appeal. Specifically, the Board found that these issues were part and parcel of the increased rating claim for the service-connected chronic lumbar strain that was on appeal before the Board at that time. In March 2021, the Board granted service connection for radiculopathy of the left lower extremity, as that is considered a full grant of the claim on appeal, that issue is no longer before the Board. In September 2017 and March 2021, the Board remanded the matter of entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity for additional development. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in February 2007; a transcript of the hearing is of record. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. 38 C.F.R. § 4.7. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Regarding radiculopathy, paralysis of the nerves is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a. 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 the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. 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 pictured 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. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. Miller v. Shulkin, 28 Vet. App. 376 (2017). The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." 1. Entitlement to an initial rating of 30 percent, but no higher, for radiculopathy of the femoral nerve of the right lower extremity The Veteran generally contends that the severity of his right lower extremity radiculopathy warrants a higher rating. Under DC 8526 (femoral nerves): a 10 percent rating is warranted for mild, incomplete paralysis; a 20 percent rating is warranted for moderate, incomplete paralysis; a 30 percent rating is warranted for severe, incomplete paralysis; and a 40 percent (maximum schedular) rating is warranted for complete paralysis, paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a. As noted by the Board in its September 2017 Decision, further medical development was required because there were inconsistencies regarding the severity of paralysis for the femoral nerve of the right lower extremity. Accordingly, the Board defers to the medical findings in the September 2013 VA peripheral nerves conditions examination and applies them to the entire appeal period because the examination contains the most severe findings, which are most advantageous to the Veteran's claim. In an April 2021 rating decision, the RO granted an earlier effective date for the issue on appeal based upon the September 2013 VA examination finding severe incomplete paralysis of the femoral nerve. The Veteran complained that his legs go completely numb and noted frequent falls. The examiner found severe intermittent pain, paresthesias and/or dysesthesias and numbness of the femoral nerve of the right lower extremity.Review of the record reveals conflicting findings ranging from mild incomplete paralysis as found in an August 2016 VA examination, moderate incomplete paralysis as found in February 2018 and October 2020 VA examinations, to severe incomplete paralysis as found in the September 2013 VA examination. In addressing the variability of the September 2013 and August 2016 VA examinations as required by the September 2017 Board remand, the February 2018 VA examiner found that "[t]he veteran's symptoms seem to be variable and intermittent. The severity would heavily depend on the veteran's condition at the time of the exam. Other factors, like weather and activity would also impact the level of severity seen." The examiner also explained that "there is some degree of subjectivity present in the nerve evaluations." Multiple VA examinations noted that the Veteran's lower extremity radiculopathy would impact his ability to work. For example, the February 2018 VA examiner found that the Veteran "is limited in his ability to work with his unpredictable loss of balance and falls when his legs "give out"." A June 2019 VA examiner did not address impairment of the femoral nerve but did find that the Veteran was "unable to perform work related tasks requiring him to ambulate on uneven terrain or perform heavy lifting with legs due to neuropathy of the bilateral lower extremities." Finally, the October 2020 VA examination found that the Veteran would have difficulty performing occupational tasks, uses a cane for stability and is at risk for falls due to his bilateral lower extremity radiculopathy. The Board finds that a 30 percent (severe) rating is warranted for the femoral nerve because there are more than just wholly sensory symptoms the Veteran also has reduced muscle strength, reduced reflexes, reduced sensation for light touch, trophic changes, constant use of a cane and abnormal gait due to the Veteran's lower extremity radiculopathy as detailed in the October 2020 VA examination; however, a 40 percent (complete) rating is not warranted because the evidence does not indicate complete paralysis. Thus, given the evidence of severe symptomatology that has been determined by medical providers to preclude sustained employment, considering the Veteran's competent assertions concerning his symptoms, and resolving all reasonable doubt in the Veteran's favor, the Board finds that, for the period from September 9, 2013, the Veteran's radiculopathy of the femoral nerve of the right lower extremity manifested in symptoms most closely approximating severe incomplete paralysis, as contemplated by the rating criteria. Accordingly, a 30 percent rating is warranted from September 9, 2013. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.