Citation Nr: 21077636 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-18 995 DATE: December 30, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for sciatic nerve radiculopathy, left lower extremity, associated with lumbar spine degenerative disc disease (DJD) is denied. Entitlement to an initial rating in excess of 10 percent for femoral nerve radiculopathy, left lower extremity, associated with lumbar spine DJD is denied. REMANDED Entitlement to a separate evaluation for right lower extremity radiculopathy is remanded. FINDING OF FACT From September 16, 2021, the Veteran's left lower extremity radiculopathy was manifested by mild incomplete paralysis of the sciatic and femoral nerves of an entirely sensory nature. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for sciatic nerve radiculopathy, left lower extremity, associated with lumbar spine DJD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for an initial rating in excess of 10 percent for femoral nerve radiculopathy, left lower extremity, associated with lumbar spine DJD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8526. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from March 1974 until April 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded by the Board in August 2019 and April 2020. The RO in October 2021 granted separate 10 percent evaluations for left lower extremity radiculopathy of the sciatic and femoral nerves, effective September 16, 2021, as secondary to the service-connected lumbar spine disability. As these separate ratings derive from a rating claim for the lumbar spine, resolved by the Board in April 2020, claims for higher initial ratings for radiculopathy remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Par]t 4. The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). However, these changes affect the underlying lumbar spine claim, previously resolved as noted above, but are not pertinent to the radiculopathy claims remaining on appeal. The Veteran was granted separate initial ratings for radiculopathy of the sciatic and femoral nerves in an October 2021 rating decision, effective September 16, 2021, the date of his most recent VA examination for back conditions. The ratings for the left lower extremity radiculopathies were assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Codes 8520 and 8526, corresponding to incomplete paralysis of the sciatic and femoral nerves, respectively. Under DC 8520, a 10 percent rating is warranted for incomplete paralysis of mild severity, while a 20 percent rating is warranted for moderate severity and a 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is provided for severe incomplete paralysis with marked muscle atrophy, and a maximum 80 percent rating is warranted with complete paralysis of the sciatic nerve. Under DC 8526, mild incomplete paralysis of the affected nerve warrants a 10 percent rating, moderate incomplete paralysis of the affected nerve warrants a 20 percent rating, severe incomplete paralysis of the affected nerve warrants a 30 percent rating, and complete paralysis warrants a 40 percent rating. In defining the distinction between the 20 percent rating and greater ratings, 38 C.F.R. § 4.124a provides that the rating should be either for the mild or at most the moderate degree if the involvement of the nerves is wholly sensory. In this case, July 2013 and May 2015 private medical treatment records reflect treatment for radiculopathy, but they do not indicate the severity of the condition or which nerves were involved. July 2016 private treatment records reflect pain radiating to the left leg. During the Veteran's August 2018 VA examination for back conditions, the Veteran reported right leg radiculopathy. However, the VA examiner found no objective evidence of right or left lower extremity radiculopathy. During the Veteran's September 2021 VA examination for back conditions, the VA examiner found evidence of left lower extremity radiculopathy involving the sciatic and femoral nerves. The Veteran reported pain radiating down his left leg, with intermittent tingling. The examiner noted moderate intermittent pain and mild numbness of the left lower extremity, with involvement of the sciatic and femoral nerves. The examiner also noted mild tingling in the left lower extremity. The Veteran has asserted he experiences more severe symptoms than are contemplated by his current evaluations. While he 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, or to determine the proper disability evaluation concerning his symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the preponderance of the evidence is against the Veteran's claims. The medical evidence does not demonstrate more severe symptoms than those contemplated by his current evaluations or of radiculopathies involving other nerves. While the September 2021 VA examiner noted moderate intermittent pain, the Veteran's tingling and numbness were both mild. The Board finds these symptoms most consistent with mild incomplete paralysis, especially because the pain was noted to be intermittent. Based on these facts, the Board finds that the preponderance of the evidence is against the claims. Accordingly, his claims for increased ratings for radiculopathy of the sciatic and femoral 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 claims, that doctrine is not applicable here. 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, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). See September 2021 VA examination for back condition (indicating the Veteran works full-time in an office job). REASONS FOR REMAND Entitlement to a separate evaluation for right lower extremity radiculopathy The Veteran asserts that he experiences right lower extremity radiculopathy secondary to his service-connected low back disability. In its April 2020 remand, the Board directed the RO to afford the Veteran a VA examination to determine whether right or left lower extremity was present and, if so, to determine the conditions' severity. The examiner was instructed to provide a rationale for all opinions expressed. September 2013 and June 2014 private treatment records indicate the Veteran reported right lower extremity radiculopathy. May 2015 private treatment records reflect the Veteran reporting back pain radiating to both of his legs. Additionally, the Veteran reported right leg radiculopathy symptoms during his August 2018 VA examination for back conditions. During the September 2021 VA examination for back conditions, the VA examiner noted that the Veteran only reported radiculopathy symptoms involving the left lower extremity. However, they provided no explanation as to why the earlier medical records indicating right lower extremity radiculopathy did not warrant diagnosing the Veteran with radiculopathy of the right lower extremity as well. The Board finds that remand is necessary to obtain an addendum VA medical opinion explaining the examiner's decision to not provide a diagnosis for radiculopathy of the right lower extremity. The matters are REMANDED for the following actions: Obtain an addendum medical opinion from the September 2021 VA examiner or, if unavailable, from another qualified examiner. The entire claims file, including a copy of this remand, must be made available to and be reviewed by the examiner. The examiner is asked to opine on the following questions: (a) Is it at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran has had a diagnosis for radiculopathy of the right lower extremity during the period on appeal, even if currently resolved? The examiner should explicitly address the medical evidence of record indicating diagnoses and reports (e.g., September 2013, June 2014, May 2015) of right lower extremity radiculopathy, as well as the Veteran's lay statements and reports. (b) If the Veteran has had a positive diagnosis for radiculopathy of the right lower extremity during the period on appeal, is it at least as likely as not that his right lower extremity radiculopathy arose during or as result of his active service, or as incurred or aggravated as due to his service-connected back disability? A complete rationale should be provided for all opinions. 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.