Citation Nr: 21006897 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 17-65 887 DATE: February 5, 2021 ORDER The claim for a rating higher than 10 percent for right lower extremity radiculopathy, affecting the sciatic nerve, is denied. A 20 percent initial rating for right lower extremity radiculopathy, affecting the femoral nerve, from March 8, 2016, is granted. FINDINGS OF FACT 1. The Veteran’s right lower extremity sciatic radiculopathy is not at greater than mild level. 2. The preponderance of the evidence shows that the Veteran’s right side radiculopathy affecting the femoral nerve is of moderate severity. CONCLUSIONS OF LAW 1. The criteria are not met for a rating higher than 10 percent for right lower extremity radiculopathy, affecting the sciatic nerve. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10; 4.124a, Diagnostic Code 8520 (2019). 2. With resolution of any reasonable doubt favorably, the criteria are met for a 20 percent rating for right lower extremity radiculopathy, affecting the femoral nerve, from March 8, 2016. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.14; 4.124a, Diagnostic Code 8526 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Army from May 1998 to September 1998, from December 2002 to December 2003, and from November 2004 to November 2007. There was a Board videoconference hearing held February 2020 before the undersigned Veterans Law Judge (VLJ), the transcript of which is of record. Another hearing previously was held at the local VA Regional Office (RO) in September 2017. In April 2020, the Board remanded the claims involving right lower extremity radiculopathy so that the Veteran could be provided with a VA examination to determine the current severity of his disability. The Veteran underwent a VA examination in August 2020. It is adequate because it is based upon consideration of the Veteran’s pertinent medical history, his current symptoms, and because it describes his disabilities in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The RO issued a Supplemental Statement of the Case (SSOC) in August 2020. There was substantial compliance with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings 1. The claim for a higher rating than 10 percent for right lower extremity radiculopathy of the sciatic nerve is denied. 2. A 20 percent initial rating for right lower extremity radiculopathy of the femoral nerve is granted. Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). There is sufficient basis for the Board to consider this case on the merits. 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 (2012); 38 C.F.R. § 4.1 (2019). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. With regard to radiculopathy, generally, neurological disorders are ordinarily to be rated in proportion to the impairment of motor, sensory or mental function. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. A note to 38 C.F.R. § 4.124a states that the term “incomplete paralysis” where involving peripheral nerve injuries, 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. Also, when peripheral nerve involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. Diagnostic Code 8520 pertains to impairment involving the sciatic nerve. Under that Diagnostic Code, a maximum 80 percent evaluation is assignable for complete paralysis to this nerve group, where the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Further evaluations may be assigned for incomplete paralysis of this nerve group, when severe in degree, with marked muscular atrophy, warranting a 60 percent rating; moderately severe, warranting a 40 percent rating; moderate, a 20 percent rating; and mild, a 10 percent rating. Diagnostic Code 8526 pertains to the anterior crural nerve (femoral). Under that Diagnostic Code, a maximum 40 percent evaluation was assignable for complete paralysis of that nerve group, as manifested by paralysis of quadriceps extensor muscles. Severe incomplete paralysis is to be rated 30 percent; moderate paralysis 20 percent; mild paralysis 10 percent. Having considered the evidence of record pertaining to right lower extremity radiculopathy, the Board will adjust the VA compensation scheme presently in effect so as to provide for an increase to 20 percent for radiculopathy femoral nerve, since the March 8, 2016 effective date of service connection. The current rating for sciatic radiculopathy would remain the same. The pertinent applicable evidence primarily is from VA examination history, starting with the June 2016 examination for the service-connected lower back disorder. The diagnoses at outset were lumbar strain and degenerative arthritis of the spine. The Veteran reported at this time constant low back pain radiating into the right leg, and also the testicular region described as sharp pain, further stating that sitting and standing too long increases pain. Muscle strength testing indicated hip flexion of 4/5 right side, knee extension 4/5 right side; and consistently 5/5 for ankle plantar flexion, ankle dorsiflexion, great toe extension. There was no muscle atrophy. Reflexes were 2+ throughout. Sensory exam was normal for the upper anterior thigh, thigh/knee, lower leg/ankle, although sensory capacity was decreased for the foot/toes. Straight leg raising test was negative. Further symptoms due to right side radiculopathy were that the Veteran had estimated a severe level of constant pain, a moderate level of intermittent pain, a severe level of paresthesias and/or dysesthesias, and moderate level of numbness. There were no other signs or symptoms of radiculopathy. There was involvement of L2/L3/L4 nerve roots right side for the sciatic nerve and femoral nerve. The examiner determined that the overall severity was mild. At the September 2017 hearing held at the Regional Office, the Veteran described having had the radiculopathy symptoms, initially stating that it seemed the region typically affected by the sciatic nerve was the greater problem. Then he described the femoral nerve problem with radiculopathy stating that the pain would shoot down the leg, sometimes gravitate around towards the front and side towards the groin and would affect the testicular region. He stated further that sometimes the back would loosen up so the problem would go away, or he would take muscle relaxers to alleviate the symptoms in question. He stated this all happened about twice a month. On VA examination again in February 2018, for the thoracolumbar spine, he reported a shooting pain from the lower back around his leg and to his groin, and that there was symptomatology as well that affected the testicular region. Apart from this the muscle strength testing, reflex testing, and sensory exams were all normal. His straight leg raising test was negative, indicating the absence of radiculopathy symptoms. According to the examiner, there was no finding of radiculopathy. During the Board hearing, the Veteran indicated that the radiculopathy present was radiating down the lower extremities region, estimated about once to twice a week, and it would impinge upon the groin or the hip area. On other occasions the symptomatology would radiate to the feet. On re-examination August 2020, for condition of the peripheral nerves, the reported symptomatology consisted of that the Veteran had continued to have low back pain over several years, which was now radiating down into the right leg, causing numbness and tingling. The back also would “knot up” in the area of the lumbar/thoracic spine, and became very tense like a “Charlie horse.” Pain radiated around both hips and into the groin causing a burning sensation. The objective symptomatology specifically due to the right lower extremity condition consisted of moderate level constant pain; no degree of intermittent pain; mild paresthesias and/or dysesthesias; mild level numbness. The Veteran reported that pain radiated around the hips bilaterally, and into the groin, causing burning sensation and discomfort. The general location of the problem was the hip, groin, and low back, and had an estimated level of severity of 6 on a scale of 1-10. Muscle strength testing and reflex testing were all normal. Sensory exam indicated a decreased level of sensation on the right side, with regard to the regions of the upper anterior thigh (L2), thigh knee (L3/4), lower leg/ankle (L4/L5/S1). There were no trophic changes. Gait was shown to be slow and cautious. The total estimated level of impairment by the VA examiner consisted of the sciatic nerve an incomplete paralysis, mild level; anterior crural (femoral) nerve an incomplete paralysis, moderate level. A November 2019 MRI study had shown various findings that were consistent with some neurological symptomatology associated with the underlying service-connected back condition, including a lumbar disc condition and other impingements on the lumbar spine canal. As to functional impact, it was indicated that a peripheral nerve condition impacted his ability to work. At work, the Veteran was required to be on his feet 10-12 hours per day and manage restaurants, carry things in a kitchen, and unload trucks, with movement required constantly. It was reported that during a spasm of the leg he became nearly incapacitated with pain in his right leg and had to go sit or rest. Further reported was that the right leg became numb and had tingling. The peripheral neuropathy also impacted his ability to stand, walk, or sit for any length of time at work. First, for the sciatic radiculopathy the current rating is 10 percent for mild level and the most probative evidence of record does not reflect a greater severity. The VA examiner who considered the question, estimated sciatica at “mild” impairment not “moderate” to warrant the next higher 20 percent rating, per Diagnostic Code 8520, with objective findings in support. For instance, on examination in June 2016 most all findings were normal except for decreased sensation found for the foot/toes. Here as with other evaluations, there was more symptomatology found but it was primarily at the thigh, quadriceps, groin areas, and more indicative of a femoral nerve problem than sciatica. Likewise the August 2020 VA examiner notated sensory issues and pain and discomfort, not muscle or reflex issues, however the symptomatology that was present bore more association to the service-connected femoral nerve disorder as based on the affected regions and with regard to daily functional capacity. However, in light of the separate ratings already granted for two different radicular nerve groups the clearest approximation of actual service-connected disability is that these symptoms belong within the category of a femoral nerve disorder. It follows that a higher rating than 10 percent for the sciatica is not warranted. Next as to the condition of the femoral nerve, the evidence warrants the increase in rating to 20 percent. This is based on more than intermittent issues with pain and discomfort that is associated with the region in question, with more recently documented issues with sensory perception. Given frequency and the factor of the functional impact upon the ability to easily carry out occupational duties, there is shown the moderate degree of impact on functional capacity. While the 2018 VA examination apparently did not note anything about neuropathy or radiculopathy, and whether that meant the absence of the same or was not addressed, there is more than enough competent lay witness testimony indicating there was a significantly higher degree of a condition than as previously noted which was mild level severity. The Veteran’s reported history is consistent and the August 2020 examination indicated similar findings. Accordingly, a 20 percent rating is granted from March 8, 2016 onwards. The August 2020 VA examiner described it as moderate incomplete paralysis. His sensation was decreased, not absent. He did not have trophic changes. His reflexes were normal. His disability is not more accurately categorized as severe. For these reasons, a higher 20 percent rating is granted for femoral nerve right side radiculopathy, while the 10 percent for sciatic radiculopathy remains in effect and so any increased rating claim for sciatica is denied. This outcome is a partial grant of the claim, and VA’s benefit-of-the-doubt doctrine applies to the extent indicated. See 38 C.F.R. § 4.3. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.