Citation Nr: 21012423 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-42 878 DATE: March 4, 2021 ORDER Entitlement to a rating higher than 10 percent prior to April 29, 2015, and higher than 40 percent thereafter for service-connected radiculopathy of the left lower extremity, is denied. Entitlement to a rating higher than 10 percent prior to April 29, 2015, and higher than 40 percent thereafter for service-connected radiculopathy of the right lower extremity, is denied. FINDINGS OF FACT 1. Prior to April 29, 2015, the evidence establishes that the Veteran’s bilateral lower extremity radiculopathy manifested by, at worst, mild incomplete paralysis. 2. Since April 29, 2015, the evidence establishes that the Veteran’s bilateral lower extremity radiculopathy has manifested by moderately severe incomplete paralysis. 3. At no point during the appeal period has the Veteran’s bilateral lower extremity radiculopathy manifested by severe incomplete paralysis. The evidence does not demonstrate that the Veteran had muscle atrophy at any point during the appeal period, much less marked muscle atrophy. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 10 percent prior to April 29, 2015, and higher than 40 percent thereafter for service-connected radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to a rating higher than 20 percent prior to April 29, 2015, and higher than 40 percent thereafter for service-connected radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Army from January 1972 to March 1974. He testified before the undersigned Veterans Law Judge (VLJ) at a Central Office hearing in June 2017. A transcript of the hearing is of record. Increased Rating Entitlement to a rating higher than 10 percent prior to April 29, 2015, and higher than 40 percent thereafter for service-connected radiculopathy of the left lower extremity; and entitlement to a rating higher than 10 percent prior to April 29, 2015, and higher than 40 percent thereafter for service-connected radiculopathy of the right lower extremity. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation. Otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under 38 C.F.R. § 4.124a, diseases of the peripheral nerves are rated based on the degree of paralysis, neuritis, or neuralgia. The term “incomplete paralysis” indicates a degree of impaired function 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. The terms “slight,” “moderate” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to arrive at a just and equitable decision. 38 C.F.R. § 4.6. The use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. It is worth noting that as of February 2, 2021, VA has amended its regulations. Included within these regulation changes are amendments for the low back. However, the propriety of the rating for the Veteran’s low back is not currently under appeal. The new regulations also address incomplete vs. complete paralysis of the sciatic nerve. VA provided a note in its final rule that, if traumatic paralysis does not cause loss of use of both hands or both feet, it is incomplete paralysis and must be rated using the appropriate diagnostic code. In this instance, the Veteran has not been shown to have traumatic paralysis. As such, the new regulations are not relevant and would not afford the Veteran a potentially higher rating. As previously noted, in June 2018, the Board denied increased ratings for, inter alia, the Veteran’s bilateral lower extremity radiculopathy prior to April 29, 2015. The Board also granted a higher 40 percent rating for each lower extremity as of that date. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). By a September 2019 Memorandum Decision, the Court set aside the June 2019 decision and remanded it for readjudication. The Court agreed that the 40 percent ratings from April 29, 2015 would not be disturbed. However, the Court directed the Board to determine whether the Veteran’s sciatic nerve symptoms are all a part of the same underlying condition or attributable to different diagnoses. As a result, the Board remanded the Veteran’s claims for further VA medical opinion in July 2020. The Veteran was afforded additional VA examination in December 2020. The examiner stated that based on a review on the Veteran’s medical history, specifically his history of degenerative disc disease of the lumbar spine, it was his opinion that the Veteran’s sciatic nerve symptoms were all a part of the same underlying condition, incomplete paralysis of the sciatic nerve as a result of degenerative disc disease of the lumbar spine. The examiner explained that radiculopathy is a condition involving the nerve roots and the Veteran did not have any peripheral nerve pathology. He further explained that medical literature, including UpToDate, supports degenerative disease of the lumbar spine being causative of radiculopathy. Because the Veteran’s sciatic symptoms are all a part of the same underlying condition, the Board will proceed to adjudicate the propriety of his currently assigned ratings. Multiple examiners have noted that the Veteran’s bilateral lower extremity radiculopathy stems from the sciatic nerve. The Veteran’s bilateral lower extremity radiculopathy is currently rated under Diagnostic Code 8520, which pertains to paralysis, neuritis or neuralgia of the sciatic nerve (hereinafter, “paralysis”). His bilateral lower extremity radiculopathy is currently rated as 10 percent disabling for each extremity prior to April 29, 2015, and 40 percent thereafter. Under DC 8520, 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, and severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. 38 C.F.R. § 4.124a. The Veteran was afforded a VA examination for his low back in December 2012. At that time, muscle strength testing was normal with no muscle atrophy found. Reflex and sensory examinations were also normal. Straight leg testing was positive. The Veteran endorsed experiencing mild bilateral lower extremity pain, moderate intermittent pain on the right with none on the left, moderate paresthesias on the left with none on the right, and no bilateral lower extremity numbness. There were no other symptoms or symptoms of radiculopathy. The examiner indicated there was bilateral sciatic nerve root involvement and the Veteran’s radiculopathy was mild. The Veteran was afforded an additional VA examination for his low back in November 2014. At that time, sensory and reflex examination were normal. Straight leg testing was negative, and the examiner found that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The Veteran reported an inability to walk long periods due to stabbing pain that did not radiate down his legs. On VA examination in April 29, 2015, the examiner noted that the Veteran had severe numbness, intermittent pain, and paresthesias in both lower extremities. However, muscle strength was normal and there was no atrophy. The Veteran reported using a cane to walk short distances, which helped maintain balance and stabilize the lower extremities. He used a wheelchair for longer distances. During his June 2017 Board hearing, the Veteran testified that he had trouble sitting for long periods and getting up due to pain that felt like “nerve pinching.” He was on medication for the nerve pain that he took three times daily. Based on the foregoing, the Board finds that the currently assigned ratings for the Veteran’s bilateral lower extremity radiculopathy are appropriate. That is, a rating higher than 10 percent for each lower extremity is not warranted prior to April 29, 2015; and a rating higher than 40 percent for each lower extremity is not warranted thereafter. For the period prior to April 29, 2015, the evidence does not show that the Veteran’s bilateral lower extremity radiculopathy manifested by moderate incomplete paralysis, such that a higher 20 percent rating would be warranted. Instead, his disability picture more nearly approximated mild incomplete paralysis. The October 2012 examination indicates that the Veteran’s symptoms were mostly mild. Although he endorsed moderate intermittent pain in his right lower extremity, and moderate paresthesias in his left lower extremity, his only other symptom was mild constant pain. The Board finds the October 2012 VA examiner’s finding that the overall severity of the Veteran’s radiculopathy was mild highly probative. The opinion was based on a complete review of the Veteran’s entire claims file, an in-person examination, and on the Veteran’s own lay reports regarding the severity of his symptoms. As noted above, mild symptoms are warrant a 10 percent rating, which the Veteran is currently assigned. Therefore, a higher rating for the period prior to April 29, 2015 is not warranted. Although the November 2014 examiner found no evidence of radiculopathy, the Board finds the results noted in the April 29, 2015 VA examination report probative. As previously noted, the Board finds that the Veteran meets the criteria for a 40 percent rating, but no higher, based on severe bilateral lower extremity radiculopathy symptoms shown on VA examination on April 29, 2015. There is absolutely no evidence at any point during the appeal period of severe incomplete paralysis of the sciatic nerve with marked muscular atrophy, or complete paralysis of the sciatic nerve, to warrant a 60 or 80 percent rating. As such, the Board finds that the currently assigned ratings for the Veteran’s bilateral lower extremity radiculopathy are appropriate. All of his symptoms have been attributed to sciatic nerve radiculopathy caused by the Veteran’s low back disability and therefore separate ratings are not warranted. The currently assigned ratings adequately compensate the Veteran for the functional impairment caused by his bilateral lower extremity radiculopathy.   In sum, the preponderance of the evidence weighs against the Veteran’s claim. An increased rating for the Veteran’s bilateral lower extremity radiculopathy higher than already granted by the Board in its June 2018 decision is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.