Citation Nr: 21011024 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 19-22 746 DATE: February 26, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. The appeal as to a rating in excess of 40 percent for degenerative changes, lumbar spine status post laminectomy for herniated nucleus pulposus with history of chipped fractured L5 is dismissed. FINDINGS OF FACT 1. The Veteran’s right lower extremity radiculopathy is manifest by no more than mild incomplete paralysis. 2. Prior to the promulgation of a decision in the appeal, in a January 2021 written correspondence, the Veteran withdrew his appeal as to a rating in excess of 40 percent for his lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for withdrawal of the appeal as to a rating in excess of 40 percent for degenerative changes lumbar spine status post laminectomy for herniated nucleus pulposus with history of chipped fractured L5 have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1959 to February 1982. This matter comes to the Board of Veterans’ Appeals (Board) from an October 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is associated with the claims folder. The Board previously remanded the claims in November 2020. This appeal has been advanced on the Board’s docket. 38 U.S.C. § 7107(a)(2). Increased Rating 1. Entitlement to an initial rating in excess of 10 percent right lower extremity radiculopathy is denied. Service connection was granted for right lower extremity radiculopathy with an initial rating of 10 percent effective date of September 18, 2017 pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. See October 2018 rating decision. The Veteran seeks a higher initial rating due to constant pain in his right leg, as well as numbness and loss of feeling. See March 2019 notice of disagreement. Where the question for consideration is the propriety of the initial evaluation assigned, the Board must consider the medical evidence since the effective date of the award of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The assignment of staged ratings is also appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The Veteran was afforded a VA examination in October 2018. The Veteran reported stinging back pain with right leg numbness all of the time. He reported occasionally using a brace. For the right lower extremity, the examiner noted there was no constant pain, mild intermittent pain, mild paresthesias and or dysesthesias, and mild numbness. The Veteran had abnormal results in the reflex exam with 1+ hypoactive results in the right knee and right ankle, and decreased results on the sensation to light touch (dermatome) testing for the right lower leg/ankle and right foot/toes. Straight leg raising test results were positive for his right leg. However, he had normal muscle tone and there was no atrophy. The report was silent as to trophic changes or altered gait. The examiner assessed mild radiculopathy of the right sciatic nerve. Private treatment records show complaints of radiating back pain, numbness and tingling. In December 2018 private treatment records, the clinical examination showed no visible sign of muscular atrophy. Muscle reflexes were 2+ and strength 5/5. There were no gross motor and sensory deficits. There was impaired light touch in the right lower extremity on sensation testing. The clinician noted a normal nerve conduction study (NCS) but abnormal EMG with evidence of active lumbosacral radiculopathy involving L5-S1 nerve roots on the right. The Veteran underwent a VA examination in December 2020. He reported chronic low back pain radiating down the right leg and worsening with prolonged standing or sitting. He also reported occasional usage of a back brace for his IVDS and radiculopathy. For the right lower extremity, the examiner noted mild constant pain, mild paresthesias and or dysesthesias, and mild numbness. The Veteran had 1+ hypoactive results in the right knee and right ankle, and decreased results on the sensation to light touch (dermatome) testing for the right lower leg/ankle and foot/ toes. Straight leg raising test results were positive for his right leg. Muscle tone was normal and there was no muscle atrophy. The examiner noted functional impairment due to radiculopathy manifested as interreference with sitting. Ultimately, the examiner assessed mild radiculopathy involving the right sciatic nerve. Based on the above, the Board finds that the level of impairment is most analogous to mild incomplete paralysis of the Veteran’s radiculopathy of the right lower extremity during the period on appeal. Thus, a higher rating is not warranted. Regarding impairment of motor functions, the December 2018 private treatment records noted no motor function deficiencies. The examination reports and medical record are otherwise silent for significant motor functioning deficits. Regarding sensory disturbance, the private treatment records show numbness and tingling. The October 2018 and December 2020 VA examination reports noted mild paresthesias and or dysesthesias, and mild numbness. At VA examinations and in the December 2018 private treatment records, the Veteran was noted to have decreased results for sensation to light touch (dermatome) testing in the right lower extremity. Regarding pain, the Veteran has consistently reported pain associated with his radiculopathy. At both VA examinations, the Veteran reported back pain that radiated down into his right lower extremity. Private treatment records similarly reflect that the Veteran reported pain in his right leg. Regarding loss of reflexes, both the October 2018 and December 2020 VA examination reports noted 1+ hypoactive for right knee and right ankle. However, the December 2018 private treatment record noted muscle reflexes of 2+ which denotes a normal result. The VA and private medical records and VA examination reports do not reflect findings suggestive of muscle atrophy, trophic changes, or complete paralysis. The VA treatment records do not contain findings relevant to right leg radiculopathy that would support the assignment of a rating in excess of 10 percent. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance, decreased reflexes, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. The Board acknowledges the lay assertions of pain that impacts his ability to stand, sit, or walk for more than short periods of time. The Board recognizes that lay statements are competent evidence as to some medical issues. However, the Board finds the VA examination reports and private treatment records are the most probative evidence in this matter as these determinations were made by medical clinicians trained to perform testing and interpret testing results in relation to the severity of a disability in circumstances like this. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The trained VA examiners have opined that the overall severity of the Veteran’s radiculopathy of the right lower extremity is mild. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence supporting separate or higher rating under a different Diagnostic Code. Lastly, the Veteran’s representative requested a remand and referral for extraschedular consideration. See February 2021 appellate brief. The Board has considered whether such action is warranted and concludes that it is not. The initial consideration for determining whether extraschedular referral is warranted is if the evidence presents such an exceptional disability picture so that the available schedular evaluation is inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). During the period on appeal, the Veteran has primarily reported symptoms of pain, numbness, and paresthesias/dysesthesias. The Board finds that the rating criteria applicable to rating nerve impairment as set forth at 38 C.F.R. §§ 4.123, 4.124, 4.124a, and the respective diagnostic codes for nerve impairment contemplate these symptoms. Although the Veteran’s representative argues that the schedular criteria is inadequate as to the impairment of the Veteran’s earning capacity, the record does not reflect this. Accordingly, extraschedular referral is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right lower extremity radiculopathy at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 ; 38 C.F.R. §§ 4.3, 4.7. There are no additional expressly or reasonably raised issues presented on the record. 2. The appeal as to entitlement to a rating in excess of 40 percent for degenerative changes lumbar spine status post laminectomy for herniated nucleus pulposus with history of chipped fractured L5 is dismissed. In a December 2020 supplemental statement of the case (SSOC), the RO readjudicated the issues on appeal. In a written January 2021 correspondence, the Veteran withdrew his appeal as it related to this issue. Specifically, the Veteran signed an “Appeals Satisfaction Notice” which indicated that he wished to withdraw the remaining issues contained in the recent SSOC. The Veteran wrote that the notice was applicable only to the ruling on this issue of the L-5 lumbar spine condition. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. Here, the Veteran’s written statement satisfies the criteria for withdrawal of his substantive appeal as to the lumbar spine issue identified above. 38 C.F.R. § 20.204. Thus, there remains no allegations of errors of fact or law with respect to this issue and the Board does not have jurisdiction to review the appeal. As such, the appeal is dismissed. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.