Citation Nr: 21008968 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-05 985 DATE: February 18, 2021 ORDER Entitlement to an initial rating in excess of 10 percent disabling for service-connected radiculopathy of the left lower extremity with sciatic nerve involvement is denied. Entitlement to an initial rating in excess of 20 percent disabling for service-connected femoral nerve radiculopathy of the left lower extremity, is denied. FINDINGS OF FACT 1. The Veteran’s service-connected radiculopathy of the left lower extremity has manifested as mild incomplete paralysis of the sciatic nerve; without more severe manifestations to include moderate, moderately severe, or severe incomplete, or complete paralysis. 2. The Veteran’s service-connected femoral nerve radiculopathy of the left lower extremity has manifested as moderate incomplete paralysis of the femoral nerve; without more severe manifestations to include severe incomplete or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent disabling for radiculopathy of the left lower extremity with sciatic nerve involvement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Codes 8599-8520. 2. The criteria for an initial rating in excess of 20 percent disabling for femoral nerve radiculopathy of the left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1986 to August 1996. In August 2018 the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing. A transcript of the hearing is of record. In July 2019, the Board remanded the claims on appeal for further development and adjudication. The Board finds that there was substantial compliance with its July 2019 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). During the pendency of this appeal, in an October 2020 rating decision the RO granted service connection for femoral nerve radiculopathy of the left lower extremity and assigned a 20 percent rating effective September 14, 2020. The RO granted the 20 percent rating as a separate rating while evaluating if an increased rating for the Veteran’s service-connected radiculopathy of the left lower extremity with sciatic nerve involvement was appropriate. However, because the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, it follows that not only does his original claim remain in controversy as less than the maximum benefit available has been awarded, but as the separate rating for femoral nerve radiculopathy is also not a full grant, it too is on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In addition, in the October 2020 rating decision, the RO granted the Veteran a total disability rating based on individual unemployability (TDIU) based on the Veteran’s service-connected disabilities. The RO assigned an effective date of March 3, 2017, the day after which the Veteran last worked. As such is considered a full grant of the benefit sought, the Veteran’s claim for a TDIU is no longer on appeal and therefore the Board does not have jurisdiction over it at this time. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.21. 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 when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is 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. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain 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., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Entitlement to a rating in excess of 10 percent disabling for service-connected left lower extremity radiculopathy with sciatic nerve involvement is denied. The Veteran contends that the severity of his left lower extremity radiculopathy with sciatic nerve involvement warrants a higher rating. As previously noted, the Veteran was granted service-connection for his left lower extremity radiculopathy in an August 2013 rating decision, and he has appealed the initial rating assigned. The Veteran’s service-connected left lower extremity radiculopathy with sciatic nerve involvement is rated under Diagnostic Codes 8599-8520. When a veteran is diagnosed with an unlisted disease, the condition must be rated under an analogous Diagnostic Code. 38 C.F.R. §§ 4.20 and 4.27. Here, the AOJ has rated the Veteran’s left lower extremity radiculopathy with sciatic nerve involvement under Diagnostic Codes 8599-8520, which represents an unlisted neurological condition evaluated by analogy. See 38 C.F.R. § 4.124a, Diagnostic Codes 8599-8520. See generally 38 C.F.R. §§ 4.20, 4.27 (providing that unlisted disabilities requiring rating by analogy will be coded as the first two numbers of the most closely related body part and “99”). Furthermore, Diagnostic Code 8520 rates a disability dealing with the sciatic nerve. Under Diagnostic Code 8520, mild incomplete paralysis warrants a 10 percent rating, moderate incomplete paralysis of the affected nerve is rated 20 percent disabling, moderately severe incomplete paralysis of the affective nerve is rated 40 percent disabling, severe incomplete paralysis with marked muscle atrophy is rated 60 percent disabling, and complete paralysis of the affected nerve is rated 80 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The words “moderate,” “moderately severe,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. 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. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. The Veteran’s post-service treatment records reflect the Veteran’s complaints of pain radiating down his back into his legs. He also reported dysesthesias, weakness, and slight decrease in sensitivity. While the Veteran has undergone various VA examinations, the examinations pertinent to the appeal are those conducted in November 1999, June 2002, May 2010, September 2016, September 2020 and November 2020. In November 1999 the Veteran underwent a VA Spine examination. The Veteran reported numbness and tingling in his left leg and foot. Upon examination, the examiner noted normal strength on muscle testing and the Veteran was able to walk heel to toe and squat and arise. The Veteran’s reflexes were intact and his sensation to pinprick was intact in both lower extremities. Sitting straight leg raises showed some mild low back and left leg pain. In June 2002 the Veteran underwent an additional VA Spine examination. The examiner noted that the Veteran underwent back surgery in 1995 and that while it provided the Veteran with some relief, he continued to report back pain as well as occasional pain radiating down into his legs. Upon examination, the examiner found no neurological abnormalities. The examiner noted that the Veteran’s motor strength was normal in his lower extremities. His sensation was intact to light touch and pin prick. Furthermore, his deep tendon reflexes were also normal. The examiner did note that the Veteran had radiculopathy associated with degenerative disc disease. In May 2010 the Veteran underwent a Peripheral Nerves examination. The Veteran reported that he had had back surgery in 1999 which provided some relief, but that he had shooting pain in his left leg again with some tingling and numbness. Muscle strength, sensory, and reflex testing were normal. The examiner noted that additional testing to include electromyography and nerve conduction studies were completed. The examiner found no evidence of right or left lower extremity neuropathy or radiculopathy. The examiner found that it was essentially a normal test, with no evidence of denervation phenomenon based on the needle EMG examination. In September 2013 the Veteran submitted interrogatories from his private physician Dr. D.E.S. Dr. D.E.S. responded to the following yes or no questions: 1) Based on your clinical observations of the Veteran, his treatment history, your review of his medical records (including his military service treatment records), and your knowledge of his types of conditions, does your patient suffer from lumbar radiculopathy? Dr. D.E.S. responded yes, however he provided no further explanation or description; 2) If you answered ‘yes’ to Question #1, please indicate by check mark which of the following best describes the severity of your patient’s lumbar radiculopathy of the left leg (incomplete paralysis of the sciatic nerve): Dr. D.E.S. indicated moderate; 3) If you answered ‘yes’ to Question #1, please indicate by check mark which of the following best describes the severity of your patient’s lumbar radiculopathy of the right leg (incomplete paralysis of the sciatic nerve): Dr. D.E.S. indicated moderate; 4) If you answered ‘yes’ to Question #1, upon clinical observation, have you found medical findings that support that your patient suffers from lumbar radiculopathy? Dr. D.E.S. answered yes, however again he failed to provide any additional explanation or description; 5) It has been reported that an EMG performed on Mr. [REDACTED] was ‘essentially normal.’ Is it accurate to state that an individual can suffer from lumbar radiculopathy at the L4-5 even though the EMG findings are ‘essentially normal?’ Dr. D.E.S. responded yes, however he again failed to provide any explanation or further description. In July 2015 the Veteran submitted an additional round of interrogatories from another of his private physicians, Dr. K.S. Dr. K.S. responded to the following yes or no questions: 1) Based on your clinical observations of the Veteran, his treatment history, your review of his medical records (including his military service treatment records), and your knowledge of his types of conditions, does your patient suffer from lumbar radicular/neurological symptoms (related to his lumbar condition)? Dr. K.S. responded yes and noted that the Veteran complained of dysesthesias (numbness, tingling, pins and needles, burning etc.). Dr. K.S. noted that the Veteran had no other abnormalities to explain his symptoms; 2) If you answered ‘yes’ to Question #1, please indicate by check mark which of the following best describes the severity of your patient’s lumbar radicular/neurological symptoms (related to his lumbar condition) of the left leg (incomplete paralysis of the sciatic nerve): Dr. K.S. responded moderate severe; 3) If you answered ‘yes’ to Question #1, please indicate by check mark which of the following best describes the severity of your patient’s lumbar radicular/neurological symptoms (related to his lumbar condition) of the right leg (incomplete paralysis of the sciatic nerve): Dr. K.S. responded moderate; 4) If you answered ‘yes’ to Question #1, upon clinical observation, have you found medical findings that support that your patient suffers from lumbar radicular/neurological symptoms (related to his lumbar condition)? Dr. K.S. responded yes and noted that the Veteran demonstrates only 4/5 strength in his left leg abduction and hip flexion, otherwise he was 5/5 throughout; 5) Based on your clinical observations of the Veteran, his treatment history, your review of his medical records (including his military service treatment records), and your knowledge of his type of conditions, can you make a reasonable medical inference that the Veteran’s lumbar radiculopathy has been limited as described above from at least April 1998? Dr. K.S. responded no. In September 2016 the Veteran underwent a VA Back Conditions examination with an accompanying DBQ. The examiner noted that the Veteran suffered from lumbar spine degenerative disc and joint disease as well as bilateral lower extremity radiculopathy. The Veteran reported low back problems since 1987 with deep aching and sometimes severe pain, accompanied by tingling and numbness radiating down both legs into his toes and feet. Upon examination, the Veteran’s strength and reflex testing was normal. His sensory examination revealed decreased sensation to light touch in his lower leg, foot, ankle and toes. Straight leg raising testing was negative. The examiner noted radiculopathy, and found no constant pain, mild numbness, and moderate intermittent pain and paresthesias and/or dysesthesias. The examiner found that the Veteran had involvement of the L4/L5/S1/S2/S3 on both sides which resulted in mild radiculopathy. In September 2020 the Veteran underwent a VA Peripheral Nerves Conditions examination with an accompanying DBQ. The Veteran complained of worsening cervical radiculopathy, but did not mention his lower extremity radiculopathy. The examiner noted that the Veteran had bilateral lower extremity radiculopathy as well as bilateral upper extremity radiculopathy. The examiner noted that the Veteran exhibited symptoms attributable to peripheral nerve conditions: mild constant pain, mild intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Strength testing revealed active movement against some resistance, and reflex testing revealed normal reflexes at the knees, but absent reflexes at the ankles. Sensory testing was normal for the lower leg and ankle but decreased at the foot and toes. Upon further examination, the examiner noted that the Veteran’s median nerve paralysis resulted in mild incomplete paralysis of the right and left. The examiner did not note any involvement or paralysis of the sciatic nerve, but noted incomplete moderate paralysis of the femoral nerve. The examiner noted that due to the Veteran’s constant pain and radiculopathy, he was no longer able to stand or walk for an extended period of time. The examiner further noted that the Veteran was only able to do 10-15 minutes of walking or standing as it aggravated his pain. Furthermore, he noted that the Veteran needed to use his cane for longer commutes. In addition, he noted that the Veteran’s radiculopathy impacted his sleep pattern. Throughout the appeal, the Veteran has submitted statements in which he has indicated his belief that his left lower extremity radiculopathy warrants a rating higher than that which has been assigned. In addition in August 2019 the Veteran testified at a Board hearing as to the nature and severity of his radiculopathy. The Veteran claimed that his radiculopathy was moderately severe and not mild. After a thorough review of the evidence of record, the Board finds that the criteria for a disability rating in excess of 10 percent are not met for the Veteran’s left lower extremity radiculopathy with sciatic nerve involvement. The evidence of record simply does not support a 20 percent rating under Diagnostic Code 8520, which would be warranted if moderate incomplete paralysis of the affected nerve were shown. None of the VA examinations indicated symptomatology consistent with moderate incomplete paralysis. While the Veteran’s private physicians in September 2013 and July 2015 did indicate that the Veteran’s sciatic nerve involvement resulted in moderate and moderate severe incomplete paralysis, they did not provide any explanations as to how they came to such conclusions, nor did they provide any examples illustrating how they justified such an increase. Furthermore, the VA examiners in November 1999 and May 2010 found no evidence of neurological abnormalities, to include radiculopathy. Furthermore, while the June 2002 examiner did find that the Veteran had radiculopathy associated with his low back disability, he did not indicate that such caused moderate or moderately severe paralysis. In addition, the September 2016 VA examiner specifically found that the Veteran’s radiculopathy was mild in nature, and the September 2020 VA examiner did not note any paralysis or involvement of the sciatic nerve. Therefore, even in the light most favorable to the Veteran, there is no probative evidence of symptomatology consistent with moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes but has found that no other Diagnostic Codes would result in more favorable findings. Furthermore, as will be discussed further below, the Veteran is already in receipt of a separate 20 percent rating for femoral nerve radiculopathy of the left lower extremity. Therefore, the preponderance of the evidence shows that the Veteran is not entitled to a rating in excess of 10 percent disabling for his service-connected left lower extremity radiculopathy with sciatic nerve involvement. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a rating in excess of 20 percent disabling for service-connected femoral nerve radiculopathy of the left lower extremity, is denied. The Veteran contends that the severity of his femoral nerve radiculopathy of the left lower extremity warrants a higher rating. As previously noted, the Veteran was granted service-connection for his lower extremity radiculopathy in an August 2013 rating decision, and granted separate service connection and a 20 percent rating for femoral nerve radiculopathy of the left lower extremity in October 2020. The Veteran’s service-connected femoral nerve radiculopathy of the left lower extremity is rated under Diagnostic Code 8526. Under Diagnostic Code 8526, a 10 percent rating is awarded for mild incomplete paralysis of the femoral nerve; a 20 percent rating for moderate incomplete paralysis of the femoral nerve; and a 30 percent rating for severe incomplete paralysis of the femoral nerve. Furthermore, a 40 percent rating is warranted where there is complete paralysis of the femoral nerve with paralysis of the femoral nerve with paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a. Again, the words “moderate” and “severe” are not defined in 38 C.F.R. §§ 4.120-4.124 a. In applying the schedular criteria for rating peripheral nerve disabilities, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The Veteran has undergone various VA examinations throughout his appeal, however the only examination which speaks specifically to his femoral nerve radiculopathy was conducted in September 2020. The examiner noted incomplete moderate paralysis of the femoral nerve. Furthermore, he found that due to the Veteran’s constant pain and radiculopathy, he was no longer able to stand or walk for an extended period of time. The examiner further noted that the Veteran was only able to do 10-15 minutes of walking or standing as it aggravated his pain. Furthermore, he noted that the Veteran needed to use his cane for longer commutes. In addition, he noted that the Veteran’s radiculopathy impacted his sleep pattern. After a thorough review of the evidence of record, the Board finds that the criteria for a disability rating in excess of 20 percent disabling are not met for the Veteran’s femoral nerve radiculopathy of the left lower extremity. The evidence of record simply does not support a 30 percent rating under Diagnostic Code 8526, which would be warranted if severe incomplete paralysis of the affected nerve were shown. The September 2020 VA examiner specifically found moderate incomplete paralysis of the femoral nerve and none of the other VA examinations or medical evidence of record indicate symptomatology consistent with severe incomplete paralysis of the femoral nerve. The Board has considered all other potentially applicable Diagnostic Codes but has found that no other Diagnostic Codes would result in more favorable findings. Therefore, the preponderance of the evidence shows that the Veteran is not entitled to a rating in excess of 20 percent disabling for his service-connected femoral nerve radiculopathy of the left lower extremity. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Other Considerations The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected disabilities; however, the Board finds that his symptomatology has been stable for each disability throughout the appeal. Therefore, assigning staged ratings for such disabilities is not warranted. In assessing the severity of the disabilities under consideration, the Board has considered the Veteran’s assertions regarding his symptoms, which he is certainly competent to provide. See, e.g. Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher ratings pursuant to any applicable criteria at any point pertinent to this appeal. In reaching this conclusion, 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. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Unger, 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.