Citation Nr: 21011220 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-27 306 DATE: March 1, 2021 ORDER A disability rating in excess of 10 percent for service-connected lumbosacral radiculopathy, right lower extremity, is denied. FINDING OF FACT At no point during the appeal period did the Veteran’s service-connected lumbosacral radiculopathy, right lower extremity, more closely approximate moderate incomplete paralysis or worse. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for service-connected lumbosacral radiculopathy, right lower extremity, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124, Diagnostic Codes (DCs) 8520, 8620. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1972 to December 1984. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision, in which the RO decreased the disability rating for the Veteran’s service-connected lumbosacral radiculopathy, right lower extremity, from 10 percent to noncompensable, effective from September 25, 2012. In a July 2014 rating decision, the RO restored the 10 percent rating. The Veteran timely appealed the claim, and in a May 2018 decision, the Board remanded the case for further development and adjudicative action. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a disability rating in excess of 10 percent for service-connected lumbosacral radiculopathy, right lower extremity The Veteran seeks a disability rating in excess of the currently assigned 10 percent for lumbosacral radiculopathy of the right lower extremity. The Veteran’s radiculopathy of the right lower extremity is currently rated pursuant to 38 C.F.R. § 4.124a, DC 8620. Under 4.124a, DC 8620 provides the rating criteria for paralysis of the sciatic nerve, and therefore neuritis (Code 8620) and neuralgia (Code 8720) of that nerve. For the sciatic nerve, complete paralysis results in an 80 percent rating. Incomplete paralysis noted as (i) severe, with marked muscular atrophy, results in a 60 percent rating; (ii) moderately severe, a 40 percent rating; (iii) moderate, a 20 percent rating; and (iv) mild, a 10 percent rating. The term “incomplete paralysis” indicates impairment of function of a degree substantially less than the type of picture for complete paralysis given for 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, Note. Terms such as “mild,” “moderate,” “moderately severe” and “severe” are not defined by the rating criteria. Rather than applying a mechanical formula, the Board must evaluate all of the evidence and render factual findings and a decision that is “equitable and just.” See 38 C.F.R. § 4.6. July 2009 VA primary care and August 2010 VA physical therapy notes show report of intermittent radiating pain down the right posterior lower extremity, and a November 2010 VA spine examination revealed lumbosacral radiculopathy with pain radiating down the posterior aspect of the right leg. An August 2012 VA Back (Thoracolumbar Spine) examination report Disability Benefits Questionnaire (DBQ) shows that while the Veteran had constant 9/10 back pain, there was “no significant current radiation.” The Veteran’s right lower extremity pain resolved with epidural steroid treatment, but increased pain with prolonged sitting or standing greater than 30 minutes was noted. No other radicular pain or other signs or symptoms due to radiculopathy were shown; there was no additional nerve involvement shown; and the severity of radiculopathy was noted as “not affected.” A May 2013 VA behavioral medicine intake note indicates that the Veteran reported pain in the back and knees that had worsened significantly in the past four years. A June 2013 VA physical therapy note shows that the right lower extremity radiculopathy stops above the knee. He reported increased pain with prolonged standing or sitting but was able to walk for one hour without increased pain. At the time, he was noted to exercise six days per week. Another note shows that the Veteran’s chronic back pain “sometimes” radiates to the right thigh area primarily as numbness and tingling. A February 2014 VA back examination report reflects no radicular pain or any other signs or symptoms due to radiculopathy; and, no other neurologic abnormalities. However, a February 2014 VA nursing note shows pain worsening in the knees, with numbness in the right leg if walking any longer than about 10 minutes, causing the leg to feel like it is going to give out. He denied cold feet or change in color of the feet. He rated the pain as 5/10, which resolved with sitting. Nonetheless, it was again noted that the Veteran exercises daily, as indicated in an August 2013 VA nursing note. A January 2019 VA MRI report shows that the Veteran presented with pain for greater than three weeks. Chronic pain was greater than three months, and the Veteran was noted as having “failed” epidural steroid injection. The interpreting physician compared the MRI to a February 2014 x-ray, and noted an impression of multilevel lumbar degenerative changes. The Veteran had a VA peripheral nerves conditions examination in November 2019. The Veteran described intermittent radiating pain down the right leg along with numbness and tingling. Steroid injections to the lower back did not help, and the examiner noted that the “recent” medical treatment records did not show any complaints or concerns of right lower extremity radiculopathy. The examiner noted no constant pain; mild intermittent pain; mild paresthesias and/or dysesthesias; and mild numbness in the right lower extremity. Muscle strength was normal with knee extension and ankle plantar flexion/dorsiflexion. Reflexes were normal in the knee and ankle. Gait was normal. The examiner found incomplete paralysis, the severity of which was mild with “no objective evidence to support a higher level of severity, based on his physical exam” or upon review of the medical records. Importantly, the examiner noted that the radiculopathy to the right lower extremity “remains unchanged.” No other pertinent physical findings, complications, conditions, signs or symptoms related to the radiculopathy were noted. More broadly, VA treatment records from December 2015 through March 2020 show that the Veteran was seen for numerous complaints of cervical radiculopathy, to the left upper extremity; however, the records do not show complaints or treatment for right lower extremity radiculopathy or related symptoms. Additionally, the Veteran has for the most part adhered to a consistent regimen of exercise. A March 2016 VA primary care note shows that the Veteran reported lifting weights five times per week, along with 45 minutes of treadmill work and stretching. A March 2019 VA pharmacy note shows that the Veteran reported exercising six days per week before breakfast, including 30 minutes of cardiovascular exercise. A November 2019 VA physical therapy consult note shows that the Veteran exercises at the gym four times per week and uses a treadmill for 45 minutes, once per week. March 2020 notes show that the Veteran did not go to the gym at the time, but only due to COVID-19. Based on the foregoing, the record does not support a finding of moderate incomplete paralysis of the sciatic nerve, or worse. As noted above, the terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the rating criteria; however, the record contains no significant evidence indicative of a level of severity greater than mild for this condition. For instance, the August 2012 VA examination report reflects “no significant current radiation.” While VA treatment records show radiating pain to the knee, for instance in June 2013 and in February 2014, the February 2014 VA examiner did not find any symptomatology due to radiculopathy or any other neurologic abnormalities. While the VA treatment records certain support that the Veteran in fact had radiating pain to the right lower extremity, the findings of “no significant radiating pain” and an absence of radicular symptoms suggest that even if there was radiating pain, it was of low severity as would not have been shown on examination. Then, after reviewing the medical records, including the Veteran’s January 2019 report of increased pain, and conducting an examination, the November 2019 VA examiner reported intermittent radiating pain and numbness, each of mild severity, and “unchanged.” Muscle strength and reflexes were normal, and there was no objective evidence to support any higher level of severity. Furthermore, the record reflects that while the Veteran has received consistent treatment related to complaints of nerve-related injuries to other body parts, the records do not show consistent treatment or complaints of right lower extremity symptoms, including radiculopathy; and, do not show any reports of a worsening as would dispute the findings of the November 2019 VA examiner in that regard. Additionally, the Veteran has continued to exercise, including longer (45 minute) walks on the treadmill, as would tend to support the examiner’s finding of an “unchanged” disability picture. On the other hand, the Veteran has received steroid injections related to the right lower extremity pain. While this shows that the Veteran in fact received treatment for the right lower extremity pain, the use of steroidal injections is not listed in the rating criteria as demonstrative of a higher level of severity. More importantly, VA treatment records, as well as the findings of the numerous VA examiners with whom the Veteran met, provide a greater context within which to assess the disability. Specifically, that evidence provides the type of context within which the use of steroidal injections must be considered, but is not more demonstrative of the severity of the condition; particularly because the medical records followed the condition throughout the appeal period and include the findings of numerous, competent VA examiners. For those reasons, the weight of the evidence is against finding that the criteria for a disability rating in excess of the currently assigned 10 percent, for lumbosacral radiculopathy to the right lower extremity, are met at any time during the appeal period. There is no reasonable doubt to resolve in the Veteran’s favor, and the claim is denied. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.