Citation Nr: 21077072 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-57 439 DATE: December 28, 2021 ORDER Entitlement to a rating in excess of 10 percent for service-connected left lower extremity radiculopathy prior to December 1, 2015 is denied. Entitlement to an increased rating of 10 percent, but no higher, for service-connected left lower extremity radiculopathy from December 1, 2015 to February 4, 2021 is granted. Entitlement to rating in excess of 10 percent for service-connected left lower extremity radiculopathy from February 4, 2021 is denied. FINDINGS OF FACTS 1. The Veteran's left lower extremity radiculopathy disability did not manifest to a moderate impairment prior to December 1, 2015. 2. The Veteran's left lower extremity radiculopathy disability manifested to a mild impairment from December 1, 2015 to February 4, 2021. 3. The Veteran's left lower extremity radiculopathy disability did not manifest to a moderate impairment for the period beginning February 4, 2021. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for radiculopathy of the left lower extremity disability prior to December 1, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520. 2. The criteria for an increased rating of 10 percent for radiculopathy of the left lower extremity disability from December 1, 2015 to February 4, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for a rating in excess of 10 percent for radiculopathy of the left lower extremity disability from February 4, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1- 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 2000 to August 2005. This matter comes before the Board of Veterans' Appeals on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural history, the Veteran's claim was originally granted service-connection in a February 2010 rating decision with a 10 percent disability rating. In a May 2015 rating decision, the RO proposed to decrease the disability rating for his service-connected left lower extremity and right lower extremity radiculopathy to zero. In September 2015, the RO issued a noncompensable rating for his bilateral lower extremity radiculopathy, which the Veteran appealed. The RO reinstated the Veteran's 20 percent for his right lower extremity radiculopathy in a July 2016 rating decision but continued to deny a higher rating for his left lower extremity radiculopathy. In a February 2021 rating decision, the RO granted a 10 percent disability rating for his left lower extremity radiculopathy effective February 4, 2021. The Veteran testified at a Board hearing in August 2020. The Board notes the Veterans Law Judge who held the August 2020 hearing is no longer employed at the Board. In a September 2021 letter, VA informed the Veteran that the prior Veterans Law Judge was no longer at the Board and requested that he respond within 30 days of the letter if he desired another hearing. To date, the Veteran has not responded to the letter. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 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. An increase in disability compensation may be granted from the earliest date on which it is factually ascertainable that an increase in disability occurred if the claim for an increase is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When the increase in disability occurred prior to one year from the date of filing, an effective date of award cannot be awarded prior to the date of the application. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). 1. Radiculopathy The record reflects that the Veteran is currently service connected for bilateral lower extremity radiculopathy, with separate ratings. The Veteran has only appealed the left lower extremity radiculopathy (LLE). The Board notes the Veteran was assigned a 10 percent rating effective May 29, 2009; noncompensable from December 1, 2015 to February 4. 2021; and a 10 percent rating from February 4, 2021. After the Veteran was issued a 10 percent rating in February 2021, the Veteran, through his representative, established that he should be awarded a 10 percent rating from December 1, 2015 to February 4, 2021. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (which assigns ratings based upon complete or incomplete paralysis of the lower extremities). The rating for lower extremity radiculopathy manifested by incomplete paralysis of the sciatic nerve was assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is warranted for incomplete paralysis of the sciatic nerve of mild severity, while a 20 percent rating is warranted for moderate severity, and a 40 percent rating is warranted for severe incomplete paralysis. Complete paralysis, in which the foot dangles and drops, no active movement is possible of muscles below the knee, fand lexion of the knee is weakened or (very rarely) lost, warrants an 80 percent rating. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve 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. During the March 2015 VA examination, the Veteran reported that he still has back pain, but his radiating pain into his legs had resolved. Upon examination, the examiner found the Veteran did not suffer from radicular pain or any other signs or symptoms due to radiculopathy. See March 2015 VA Back Conditions Disability Benefits Questionnaire (DBQ). The Veteran's private physician submitted a medical opinion on the Veteran's behalf. The Board notes that the physician only addressed the Veteran's right leg and never addressed the Veteran's LLE. See September 2015 Private OrthoRehab Specialists Medical Opinion. In connection with the medical opinion, the physician completed an examination report. Here, the physician noted the Veteran suffered from weakness of the right leg and radiculopathy was confirmed by an EMG. When noting the severity of the Veteran's radiculopathy, he found the right leg was moderate and noted the LLE was not affected. See February 2016 Private Back Conditions DBQ. During his October 2020 hearing, the Veteran testified that his physical therapist used a strike machine on his legs to determine any weakness in his legs. The Veteran stated that his LLE was healthier than his right, but his LLE showed weakness. In addition, the Veteran stated that he experiences pain in his LLE. See October 2020 Hearing Transcript. In the Veteran's most recent VA examination, the examiner found the Veteran suffered from mild intermittent pain, mild paresthesias and/or dysesthesias, mild numbness, and mild incomplete paralysis of the external popliteal nerve. He was evaluated overall as having LLE radiculopathy of mild severity. See February 2021 VA Peripheral Nerves Conditions DBQ. Prior to December 1, 2015 After considering the evidence, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent for his service connected LLE radiculopathy LLE during this period on appeal. The 10 percent rating corresponds with his diagnosis of LLE and symptoms of radiating pain. To obtain a higher rating of 20 percent, the evidence must establish that the Veteran's symptoms amounted to moderate in severity. However, the Board finds the evidence does not establish such. In fact, the Veteran does not argue in this appeal that his LLE amounted to a higher rating of moderate severity. The Board notes that while the Veteran is competent to observe his lower extremity symptoms, he does not have the training or credentials to provide a competent opinion as to a specific diagnosis or the severity of LLE. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, the Board finds that he is not competent to opine on whether his LLE is more severe than evaluated. The Veteran's VA and private medical records do not reflect that he has had moderate, moderately severe, or severe incomplete paralysis or complete paralysis. As noted above, the medical records do not establish that his severity of his LLE amounted to more than mild. The Board acknowledges his radiating pain in his LLE but does not find that it amounts to moderate severity or higher. At no point during this period on appeal was there any competent indication that the Veteran's LLE was any more than mild (and incomplete). In fact, the March 2015 examiner did not find that the Veteran had current radiculopathy. Based on the entirety of the claims file, the Board concludes that the Veteran's LLE has been of a severity characterized as mild incomplete paralysis during this period on appeal. See 38 C.F.R. § 4.124a, DC 8520. Considering these findings and the absence of any competent medical evidence indicating otherwise, the Board finds that the preponderance of the evidence weighs against this claim, and that the Veteran is therefore not entitled to an increased evaluation of his LLE radiculopathy for this period. December 1, 2015 to February 4, 2021 The Veteran claims entitlement to a compensable evaluation for his LLE during the period on appeal from December 1, 2015 to February 4, 2021. The condition has been evaluated under DC 8520 as noncompensable. In light of the evidence of record, the Board finds the Veteran is entitled to a rating of 10 percent for this entire period on appeal due to his mild LLE radiculopathy. The Board notes the March 2015 VA examiner did not find a diagnosis of LLE radiculopathy, but the Board finds the Veteran's October 2020 testimony during the Board hearing, addressing pain and weakness, sufficient to award a minimum compensable rating. The Veteran is competent to observe and testify to his subjective and sensory LLE symptoms, and this testimony suggests mild symptoms. Considering the evidence of record and the absence of any competent medical evidence indicating otherwise, the Board finds that the evidence supports a 10 percent rating for the Veteran's LLE radiculopathy during this period on appeal, as his condition amounts to mild in severity. At no point during this period on appeal was there any competent indication that the Veteran's LLE was more than mild (and incomplete) in degree. In fact, the Veteran's private physician did not mention the Veteran's LLE with the private medical records. For that reason, the Board concludes that based on the available medical evidence, the Veteran's LLE radiculopathy has been of a severity that is better characterized as mild incomplete paralysis. See 38 C.F.R. § 4.124a, DC 8520. The Board has applied the benefit of doubt of doctrine in reviewing the Veteran's claim for his left lower extremity radiculopathy, and finds that an evaluation of 10 percent, but no higher, is warranted for the left lower extremity radiculopathy from December 1, 2015 to February 4, 2021. February 4, 2021 to Present After considering the evidence, the Board finds that the Veteran is not entitled to a rating higher than 10 percent from February 4, 2021. This rating corresponds with his diagnosis of LLE radiculopathy and symptoms of numbness, pain, and paresthesias and/or dysesthesias. The Board notes that the VA examination of this date does not show atrophy in the LLE. The Board notes the February 2021 VA examination is the only evidence of record for this period on appeal. As these symptoms are sensory in nature, however, and have been evaluated as being no more than mild in severity, a 20 percent rating, corresponding to moderate, is not warranted for the LLE radiculopathy for any time during the period on appeal. See 38 C.F.R. § 4.12a ("When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree.") In so finding the above, the Board notes that the Veteran is competent to report on symptoms and credible to the extent that he sincerely believes he is entitled to higher ratings. In those portions of the decision where his claims have been denied, however, his credible lay evidence is outweighed by competent medical evidence that evaluates the left lower extremity radiculopathy based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiner has the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to degree of LLE radiculopathy. As such, given the findings and the absence of any competent medical evidence indicating otherwise, the Board finds that the preponderance of the evidence weighs against the claim and that the Veteran is therefore not entitled to an increased evaluation for the LLE radiculopathy from February 4, 2021. 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) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.