Citation Nr: 21006244 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 10-14 288 DATE: February 3, 2021 ORDER Entitlement to rating in excess of 10 percent prior to February 18, 2020, and in excess of 20 percent thereafter, for left lower extremity radiculopathy associated with a low back disability is denied. FINDING OF FACT Prior to February 18, 2020, the Veteran’s left lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis affecting the sciatic nerve; beginning February 18, 2020, the Veteran’s left lower extremity radiculopathy has been manifested by no more than moderate incomplete paralysis affecting the sciatic nerve. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent prior to February 18, 2020, and in excess of 20 percent thereafter, for left lower extremity radiculopathy associated with a low back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.6, 4.7, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1974 to July 1994. In February 2016, the Veteran testified before the undersigned Veterans Law Judge. The Board of Veterans’ Appeals (Board) remanded the appeal for further development in April 2016. In a May 2018 decision, the Board denied the Veteran’s appeal for entitlement to a rating in excess of 40 percent for a low back disability; a rating in excess of 10 percent prior to September 30, 2010, and in excess of 30 percent from September 30, 2010 to February 26, 2013, for left knee arthritis manifested by limitation of extension; a compensable rating prior to September 30, 2010, and in excess of 10 percent from September 30, 2010, to February 26, 2013, for left knee arthritis manifested by limitation of flexion; and a rating in excess of 30 percent from April 1, 2014 for status post total left knee replacement; and awarded a separate 10 percent rating, but no higher, for status post left knee meniscectomy from November 1, 2007, to February 26, 2013, and a separate 10 percent rating, but no higher, for left knee instability prior to February 26, 2013. The Board also found that the RO’s 10 percent and 20 percent ratings for left and right lower extremity radiculopathy associated with a low back disability from June 30, 2016, were appropriately rated as assigned. The Veteran timely appealed the May 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2019 Order, pursuant to a Joint Motion for Partial Remand (JMPR) submitted by the parties, the Court vacated and remanded the portion of the Board decision for the issues outlined above. The Court noted that the Board’s award of separate 10 percent ratings for status post left knee meniscectomy from November 1, 2007, to February 26, 2013, and left knee instability prior to February 26, 2013, should not be disturbed as they are favorable to the Veteran. The Court also dismissed the Veteran’s appeal of the Board decision to the extent it denied a rating in excess of 10 percent prior to September 30, 2010, and in excess of 30 percent from September 30, 2010 to February 26, 2013, for left knee arthritis manifested by limitation of extension; a compensable rating prior to September 30, 2010, and in excess of 10 percent from September 30, 2010, to February 26, 2013, for left knee arthritis manifested by limitation of flexion; and a separate rating in excess of 10 percent for status post left knee meniscectomy from November 1, 2007 to February 26, 2013. No errors were identified with respect to the Board’s left knee scar or extraschedular analysis. Thus, these aspects of his left knee increased rating claim were not addressed further. In December 2019, the Board remanded the appeal for further development. In a September 2020 decision, the Board denied a rating in excess of 40 percent for a low back disability, granted an initial 10 percent rating from December 8, 2006, to June 30, 2016, for right lower extremity radiculopathy associated with a low back disability, denied a rating in excess of 20 percent for left knee instability prior to February 26, 2013, exclusive of a temporary total rating in 2007, and denied a rating in excess of 30 percent for status post total left knee replacement. The Veteran did not appeal these issues to Court or file a motion for reconsideration; thus, these issues are no longer before the Board. In the same decision, the Board remanded the appeal for entitlement to an increased rating for left lower extremity radiculopathy associated with a low back disability for issuance of a Supplemental Statement of the Case (SSOC). In October 2020, the RO furnished an SSOC regarding the increased rating claim for left lower extremity radiculopathy associated with a low back disability. Increased Ratings Entitlement to rating in excess of 10 percent prior to February 18, 2020, and in excess of 20 percent thereafter, for left lower extremity radiculopathy associated with a low back disability is denied. I. General Rating Principles and Rating Criteria Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. While the regulations require review of the recorded history of a disability, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 is assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. Here, the Veteran’s left lower extremity radiculopathy (sciatic nerve) is currently rated under DC 8520. Under DC 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating, moderate incomplete paralysis of the sciatic nerve warrants a 20 percent rating, and moderately severe incomplete paralysis of the sciatic nerve warrants a 40 percent rating. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscle atrophy. A maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). 38 C.F.R. § 4.124a, DC 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. The words, “mild,” “moderate,” “moderately severe,” and “severe,” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board evaluates all of the evidence to the degree that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for “mild” includes not very severe. WEBSTER’S II NEW COLLEGE DICTIONARY at 694 (1995). A synonym for “mild” is “slight,” which is defined as small in size, degree, or amount. Id. at 1038. The definitions for “moderate” include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for “severe” include extremely intense. Id. at 1012. II. Analysis The Veteran is in receipt of a 10 percent prior to February 18, 2020 and a 20 percent thereafter for left lower extremity radiculopathy associated with a low back disability. The appeal period is from December 8, 2006, the date of his increased rating claim, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran was afforded a VA back examination in February 2009. Range of motion testing results were as follows: forward flexion between 25 and 30 degrees; extension to 10 degrees; right lateral flexion between five and 10 degrees, left lateral flexion to 15 degrees; and right and left lateral rotation was less than five degrees, with no further limitation of motion with repetitive use. Straight leg testing was positive in both legs and muscle strength testing was normal; however, the examiner noted no evidence of radiculopathy following EMG/NCV studies. The Veteran reported flare-ups occurring two to three times weekly when the pain was at a 10. The Veteran was afforded another VA back examination in June 2016. He reported chronic daily back pains with prolonged walking, standing, sitting, lifting, with repetitive movements increasing the pain. The Veteran denied flare-ups and functional loss even with regards to repetitive use. Range of motion testing results were as follows: forward flexion to 40 degrees; extension to 10 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 20 degrees, with no further limitation of motion with repetitive use. The examiner noted pain that did not result in functional loss. No guarding, muscle spasms, or ankylosis was found. Muscle strength, reflexes and sensory testing were normal on the left side. Straight leg raising test was negative in both legs. The examiner indicated radicular symptoms of mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the bilateral lower extremities with mild radiculopathy on both sides. No other neurologic abnormalities were noted. Most recently, the Veteran was afforded a VA back examination on February 18, 2020. He reported weekly flare-ups described as low back pain with bending, lifting and walking for long periods and functional loss described as limited bending backwards, limited repetitive bending forward, and limited lifting. Range of motion testing results were as follows: forward flexion to 60 degrees; extension to 5 degrees; right and left lateral flexion to 25 degrees; and right and left lateral rotation to 20 degrees, with no further limitation of motion with repetitive use. The examiner noted pain results in functional loss during extension. The examiner noted Deluca factors significantly affect range of motion with repeated use over time and during flare-ups with forward flexion to 5 degrees; extension to zero degrees; right and left lateral flexion to 25 degrees; and right and left lateral rotation to 30 degrees and 20 degrees, respectively. Guarding that does not result in abnormal contour was indicated and no muscle spasms or ankylosis were found. Muscle strength was normal in all areas except the bilateral knees extension slightly reduced (4/5). Reflex testing was absent (0) in the bilateral knees and ankles. Sensory testing was normal in the upper anterior thigh bilaterally and decreased in the thigh/knee, lower leg/ankle and foot/toes bilaterally. Straight leg raising test was negative in both legs. The examiner indicated radicular symptoms of moderate constant pain, mild paresthesias and/or dysesthesias, and moderate numbness in the bilateral lower extremities with moderate radiculopathy on both sides. No other neurologic abnormalities were noted. The Veteran was also afforded a separate peripheral nerves condition VA examination in February 2020. The examiner documented the same bilateral lower extremity radiculopathy findings noted above except for noting moderate paresthesias and/or dysesthesias bilaterally. Based on the totality of the evidence, the Board finds that the 10 percent rating prior to February 18, 2020, and the 20 percent rating thereafter for left lower extremity radiculopathy are appropriate as currently assigned. Notably, during the February 2009 VA examination, no evidence of lower extremity radiculopathy due to his back condition was found but the Veteran complained of numbness and tingling in his feet and a positive straight leg test was indicated. Thereafter, during the June 2016 VA examination, the examiner indicated radicular symptoms that were mild in nature and found only mild radiculopathy bilaterally. To this end, it was not until the February 18, 2020 VA examination that the examiner endorsed moderate radicular symptoms and found moderate incomplete paralysis in the left lower extremity. The Board finds that no more than moderate left lower extremity radiculopathy has been present since February 18, 2020. Prior to February 18, 2020, there is no indication of more than mild neurologic symptoms from Veteran’s complaints of numbness and tingling in his feet, as well as the positive straight leg test, during the February 2009 VA examination, and the June 2016 VA examiner’s findings of mild radiculopathy. However, as noted above the February 2009 examiner noted that EMG/NCV studies in the bilateral lower extremities indicated no radiculopathy due to his back condition, but that his symptoms were due to neuropathy. Thus, until June 30, 2016, the 10 percent rating for mild incomplete paralysis is purely based on subjective symptoms. Thereafter, the evidence shows objective evidence of mild radiculopathy in the left lower extremity until the February 18, 2020 VA examination, when moderate symptomology and radiculopathy is indicated, warranting a 20 percent rating since that time. In other words, the Board finds the Veteran’s left lower extremity radiculopathy manifested with only slight symptomatology until February 18, 2020, when average findings coincident with a 20 percent rating were demonstrated. A rating in excess of 20 percent is not warranted, as moderately severe or severe left lower extremity radiculopathy is not shown at any time during the appeal period. Specifically, none of the above-cited evidence points towards symptomatology that is between average and intense (moderately severe) or intense (severe) symptomatology. The Veteran’s condition has been consistently described as mild or moderate in nature by examiners, and the objective evidence and lay statements of record support the examiners’ conclusions in this regard. For these reasons, an increased rating is not warranted above the staged ratings that have already been assigned in this case. Accordingly, the benefit sought on appeal is denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Asante 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.