Citation Nr: 21012422 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-06 115 DATE: March 4, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected left lower extremity sciatic nerve radiculopathy is denied. Entitlement to a disability rating in excess of 10 percent for service-connected right lower extremity sciatic nerve radiculopathy is denied. REMANDED Entitlement to a compensable disability rating prior to May 31, 2018 and in excess of 10 percent thereafter for service-connected left lower extremity femoral nerve radiculopathy is remanded. Entitlement to a compensable disability rating prior to May 31, 2018 and in excess of 10 percent thereafter for service-connected right lower extremity femoral nerve radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran’s left lower extremity sciatic nerve radiculopathy is manifest by wholly sensory involvement and no more than mild incomplete paralysis. 2. The Veteran’s right lower extremity sciatic nerve radiculopathy is manifest by wholly sensory involvement no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left lower extremity sciatic nerve 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 a disability rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1988 to November 2008 in the United States Marine Corps. Increased Rating 1. Entitlement to a disability rating in excess of 10 percent for service-connected right lower extremity sciatic nerve radiculopathy. 2. Entitlement to a disability rating in excess of 10 percent for service-connected left lower extremity sciatic nerve radiculopathy. The Veteran contends that he is entitled to higher ratings because of more severe radiculopathy symptoms. 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 disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” 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 Board finds that increased ratings are not warranted for impairment of the sciatic nerve of either lower extremity at any time during the appeal period. On VA examination in May 2018, motor strength, reflex and sensory examinations were all normal. The examiner noted complaints of moderate paresthesias and/or dysesthesias and numbness in both lower extremities. The examiner specifically identified impairment in both the femoral and sciatic nerves. The examiner specifically identified the severity of the radiculopathy as mild, but did not distinguish between the nerves affected in that assessment. The September 2020 nerve examination included normal findings on muscle strength and reflex testing and on sensory examination. The examiner specifically identified mild paresthesia or dysesthesias in both extremities as the only symptom. There were no trophic changes and the Veteran’s gait was normal. The examiner characterized the sciatic nerve impairment as mild incomplete paralysis for both the right and left sciatic nerves. Based on the above, the Board finds that the impairment of each sciatic nerve is wholly sensory and the criteria for ratings in excess of 10 percent are not met or more closely approximated. Both VA examinations noted normal findings on muscle strength, reflex and sensory examinations. On the September 2018 examination, the Veteran complained of moderate paresthesias and/or dysesthesias and numbness; however, the September 2020 examination noted only mild paresthesias. The earlier examination contemplated involvement of the sciatic and femoral nerves, but did not differentiate between the effects of each. The later examination specifically identified the sciatic nerve only. Thus, the Board finds that the wholly sensory involvement is not so severe that it could be characterized as involving continuous symptoms or resulting in greater impairment that would be better characterized as moderate impairment. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claims for ratings in excess of 10 percent for service-connected left and right lower extremity sciatic nerve radiculopathy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a compensable disability rating prior to May 31, 2018 and in excess of 10 percent thereafter for service-connected left femoral nerve radiculopathy is remanded. 2. Entitlement to a compensable disability rating prior to May 31, 2018 and in excess of 10 percent thereafter for service-connected right femoral nerve radiculopathy is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board’s previous remand specifiaclly requested an assesment of the Veteran’s service-connected femoral nerve radiculopathy and a retrospective opinion on any evidence of manifestations prior to May 31, 2018. With respect to femoral nerve radiculopathy, the examiner stated that there was no evidence of its existence despite the issue being established as service-connected based on VA examiantion evidence. Therefore, in providing the requested opinion the examiner must accept as fact that service connection has been established for left and right lower extremity femoral nerve radiculopathy and a 10 percent rating has been assigned for that disability and, as such, the examiner must accept as fact that the Veteran has femoral nerve radiculopathy. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right femoral nerve radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In doing so the examiner is instructed to accept as fact that service connection has been established for left and right femoral nerve radiculopathy. Based on a review of the record, the examiner must also address the following retrospective opinion: All neurological manifestations shown since November 2008, with reference to each femoral nerve and level of severity. The examiner must specifically say when femoral nerve involvement was first shown. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.