Citation Nr: 21008494 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 05-10 685A DATE: February 17, 2021 ORDER A rating in excess of 10 percent for the radiculopathy of the left lower extremity from May 1, 2014 is denied. A rating in excess of 10 percent for the radiculopathy of the right lower extremity from October 16, 2015 is denied. FINDINGS OF FACT 1. For the rating period from May 1, 2014, the left lower extremity radiculopathy has been manifested by pain and numbness, more nearly approximating mild incomplete paralysis of the sciatic nerve. 2. For the rating period from October 16, 2015, the right lower extremity radiculopathy has been manifested by pain and numbness, more nearly approximating mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the rating period on appeal from May 1, 2014, the criteria for a rating in excess of 10 percent left lower extremity radiculopathy have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8520. 2. For the rating period on appeal from October 16, 2015, the criteria for a rating in excess of 10 percent right lower extremity radiculopathy have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8520. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issue with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1997 to May 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board issued a decision which, in pertinent part, denied the Veteran’s claims seeking a rating in excess of 10 percent for radiculopathy of the left lower extremity, since May 1, 2014, and denied a rating in excess of 10 percent for radiculopathy of the right lower extremity, since October 16, 2015. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court granted a Joint Motion for Remand (JMR), in which the parties agreed that the Board did not discuss favorable medical evidence in May 2014 and March 2018 treatment records. The parties requested vacatur and remand so the Board could provide adequate reasons and bases to discuss this favorable evidence. In November 2019, the Board remanded the instant issues in order to give the Veteran the opportunity to identify favorable medical evidence and obtain a VA examination. A VA examination was conducted in January 2020. In October 2020, the Board remanded the issues again in order to obtain updated VA treatment records from the G.V. (Sonny) Montgomery VA Medical Center (VAMC) from August 2020 to the present and outstanding medical records from the University of Mississippi Medical Center within the timeframe of May 2017 to October 2017. The VAMC records were submitted to the claims file in November 2020. However, in January 2021, the University of Mississippi Medical Center indicated that it did not have any medical treatment records pertaining to the Veteran for the time period requested. Legal Authority for Disability Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating 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 the residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Disability ratings are based upon the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to issues raised in the record and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. See 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Where there is a question as to which of two ratings shall be applied, the higher rating 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, 4.21. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. 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 should be for the mild or at most, the moderate degree. See 38 C.F.R. § 4.124a. 1. Rating Radiculopathy of the Left Lower Extremity 2. Rating Radiculopathy of the Right Lower Extremity The Veteran is in receipt of a 10 percent disability rating for the radiculopathy in the left lower extremity from May 1, 2014 and a 10 percent disability rating for the radiculopathy in the right lower extremity from October 16, 2015. The Veteran generally contends that he has been experiencing pain and numbness in both lower extremities and requests increased ratings. After a review of all the evidence, both lay and medical, the Board finds that for the rating period from May 1, 2014, the service-connected radiculopathy in the left lower extremity manifested in pain and numbness that more nearly approximates mild incomplete paralysis of the sciatic nerve to warrant a 10 percent rating but no higher. The Board also finds that, for the rating period from October 16, 2015, the right lower extremity radiculopathy has been manifested by pain and numbness, more nearly approximating mild incomplete paralysis of the sciatic nerve. May 2014 VA treatment records show that the Veteran reported pain radiating from the lower back down both legs with some numbness, explaining that the legs would go numb if he walked for any length of time. The records also noted that he had decreased left ankle reflexes. June 2014 private treatment records show that the Veteran reported paresthesias in the lower extremities. The Veteran submitted to an October 2015 VA examination to assess the thoracolumbar spine. The Veteran reported pain originating in the lower back and radiating down both legs. The VA examiner found mild intermittent pain and mild paresthesias and/or dysesthesias in both lower extremities, with normal reflexes in both ankle ankles and both knees, normal muscle strength in both lower extremities, and normal gait. Sensory testing produced normal results bilaterally in the upper anterior thighs, thigh/knees, lower leg/ankles, and feet/toes. Records from the University of Mississippi from January 2017 and February 2017 indicate that the Veteran reported pain in the lower right extremity. The Veteran submitted to a March 2018 VA examination to assess the thoracolumbar spine. The VA examiner found that the Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. The VA examiner found hypoactive reflexes in the ankles but normal reflexes in both knees. Sensory testing produced normal results bilaterally in the upper anterior thighs, thigh/knees, lower leg/ankles, and feet/toes. The VA examiner also noted normal gait with no pain. The Veteran submitted to a January 2020 VA examination to assess the peripheral nerves. The Veteran reported pain radiating from the lower back to both feet and instances of numbness in the toes. The VA examiner found that the Veteran had a normal gait and no muscle atrophy. Sensory testing produced normal results for both feet and both legs. The VA examiner also found that the sciatic, anterior crural, and obturator nerves in both lower extremities were all normal, with no incomplete or complete paralysis. The Veteran submitted to a January 2020 VA examination to assess the thoracolumbar spine. The Veteran reported pain radiating from the lower back to the gluteal region, which is aggravated by exertion, but is not associated with lower extremity paresthesias, weakness, or gait instability. The VA examiner found that the Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. The VA examiner also noted no muscle or sensory deficits. Sensory testing produced normal results bilaterally in the upper anterior thighs, thigh/knees, lower leg/ankles, and feet/toes. The VA examiner noted normal reflexes in both knees with hypoactive reflexes in both ankles. The totality of the evidence reflects, that while the Veteran had intermittent pain and numbness with some instance of slightly diminished reflexes, there was otherwise preserved strength, normal sensory tests, normal gait, and only sporadic medical findings of incomplete paralysis. For these reasons, the preponderance of the evidence weighs against a rating in excess of 10 percent for the left lower extremity sciatica from May 1, 2014 and against against a rating in excess of 10 percent for the right lower extremity sciatica from October 16, 2015; as such, the appeal for higher ratings as to both issues must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.