Citation Nr: 21075880 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-53 285 DATE: December 21, 2021 ORDER Entitlement to an initial increased disability evaluation of 20 percent, but no greater, for radiculopathy and peripheral neuropathy of the left lower extremity, for the period prior to November 9, 2012, is granted. Entitlement to an initial increased disability evaluation in excess of 20 percent for radiculopathy and peripheral neuropathy of the left lower extremity, for the period from November 9, 2012, is denied. FINDING OF FACT For both periods on appeal, the Veteran's service-connected radiculopathy and peripheral neuropathy of the left lower extremity is manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. For the period on appeal prior to November 9, 2012, the criteria for a 20 percent disability rating, but no higher, for radiculopathy and peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. For both periods on appeal, the criteria for a disability rating in excess of 20 percent for radiculopathy and peripheral neuropathy of the left lower extremity have not been met. 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 had active-duty service from August 1967 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Board remanded this matter to obtain a new VA examination and medical opinion assessing the severity of the Veteran's disability for the entire period on appeal. Now of record are September 2021 VA examinations and medical opinions addressing the same, and to that extent, the Board finds that its May 2021 remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 1. Entitlement to an initial increased disability evaluation in excess of 10 percent for radiculopathy and peripheral neuropathy of the left lower extremity for the period prior to November 9, 2012 2. Entitlement to an initial increased disability evaluation in excess of 20 percent for radiculopathy and peripheral neuropathy of the left lower extremity for the period from November 9, 2012 The Veteran contends that the severity of his neurological disorder affecting his left lower extremity is not reflected in the disability evaluations assigned for each period on appeal. See February 2019 Appellate Brief. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 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. 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 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. 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." 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. See Miller v. Shulkin, 28 Vet. App. 376 (2017). During the September 2021 VA examination, the examiner indicated that the Veteran does not suffer from trophic changes, or muscular atrophy, attributable to peripheral neuropathy. The Veteran did have decreased sensation for light touch of the left lower leg and ankle. The Veteran's reflexes were all noted as being normal. The Veteran's gait was deemed abnormal, resulting in limping on the left leg as due to radiculopathy. Ultimately, the VA examiner indicated that the Veteran suffers moderate incomplete paralysis of the left lower extremity. Importantly, as it relates to both periods on appeal, the VA examiner opined that the Veteran has suffered from moderate incomplete paralysis of the left lower extremity since at least 2010, when the disability worsened. In terms of the functional impact, the VA examiner remarked that the Veteran's disability impacts his ability to walk or stand for long periods. Regarding the Veteran's radiculopathy of the left lower extremity, the VA examiner indicated that the Veteran suffers mild intermittent pain of the left lower extremity, moderate paresthesias and/or dysesthesias of the left lower extremity, and moderate numbness of the left lower extremity. The Veteran had decreased position sense and cold sensation of the left lower extremity. The Veteran did not have muscle atrophy, or trophic changes. Ultimately, the VA examiner indicated that the Veteran suffers moderate incomplete paralysis of the left lower extremity. The VA examiner added that the Veteran's aforesaid two conditions are related in that they affect the left lower extremity in similar ways, and together produce a combined detriment to the Veteran's functionality. See also November 9, 2012 VA examination report (also indicating moderate radiculopathy; the basis for the Veteran's currently assigned 20 percent rating from November 9, 2012). The Board notes that the Veteran's disability was also examined by a VA examiner in August 2020. However, the Board assigns this examination no probative value given its internal inconsistencies relative to providing a diagnosis, and then later contradicting said finding in stating that the Veteran does not suffer from peripheral neuropathy, while his lumbar radiculopathy is asymptomatic. The Board notes that neither the Veteran nor his representative have presented a specific argument with citation to supporting evidence, medical or lay, in favor of the claim for a disability rating in excess of 20 percent for the left lower extremity, other than to indicate that the November 2012 VA examination did not adequately assess his symptomatology. See February 2019 Appellate Brief; see also April 2021 Appellate Brief; November 2021 Appellate Brief. Based on the above, the Board finds that the disability is primarily manifest by moderate incomplete paralysis of the left lower extremity for the entirety of both period(s) on appeal with slight sensory changes, and an abnormal gait resulting in limping of the left leg. The VA examinations and VA treatment records during the period on appeal do not show moderately severe incomplete paralysis. Therefore, a preponderance of the evidence of record is against a finding that the disability is manifest by muscular atrophy, impairment of reflexes, or decreased muscular strength. Nor is there evidence of the use of assistive devices. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis of the left lower extremity warranting an increased 20 percent disability rating for the period prior November 9, 2012, but no higher for either period on appeal. C. Casey Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, 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.