Citation Nr: 21013618 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 09-10 887 DATE: March 10, 2021 ORDER Entitlement to a rating greater than 40 percent for left lower extremity intervertebral disc syndrome (IVDS) involving the sciatic nerve is denied. Entitlement to a rating greater than 40 percent for right lower extremity IVDS involving the sciatic nerve is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s left lower extremity IVDS involving the sciatic nerve was manifested by severe incomplete paralysis, but no marked muscle atrophy. 2. Throughout the period on appeal, the Veteran’s right lower extremity IVDS involving the sciatic nerve was manifested by severe incomplete paralysis, but no marked muscle atrophy. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating greater than 40 percent for left lower extremity IVDS involving the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.124a Diagnostic Code (DC) 8599-8520. 2. The criteria for entitlement to a rating greater than 40 percent for right lower extremity IVDS involving the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.124a DC 8599-8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to September 1992. The appeal was most recently before the Board in September 2020 when it was remanded for further development. The Board finds there has been substantial compliance with the remand directives for the claims decided here. Stegall v. West, 11 Vet. App. 268 (1998). The prior Board remand included an increased rating claim for a back disability and entitlement to a total disability based upon individual unemployability (TDIU) prior to June 1, 2009. In a December 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted the Veteran 100 percent disability for his back disability for the entire period on appeal. Consequently, the Veteran received a full grant of benefits sought for his increased rating claim for his back disability, and his earlier effective date for his grant of TDIU is now moot. Thus, the remaining issues before the Board are characterized on the above title page. The Board also notes that the Veteran is also separately rated for bladder and bowel impairment due to his service connected back disability. Increased Ratings Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating greater than 40 percent for left lower extremity IVDS involving the sciatic nerve 2. Entitlement to a rating greater than 40 percent for right lower extremity IVDS involving the sciatic nerve The Veteran’s bilateral sciatic nerve radiculopathies have been evaluated as 40 percent disabling for the entire period on appeal under 38 C.F.R. § 4.124a DC 8520. The Board concludes that a rating higher than 40 percent is not warranted for the right or left lower extremity for any period on appeal. Schafrath, 1 Vet. App. at 589; Hart, 21 Vet. App. at 505 (2007). Under 38 C.F.R. § 4.124a, the schedules for rating diseases of the peripheral nerves include alternate diagnostic codes for paralysis, neuritis, and neuralgia of each nerve. See 38 C.F.R. § 4.124a, DC’s 8205 to 8730. DC 8520 provides for ratings for paralysis of the sciatic nerve. Under DC 8520, complete paralysis of the nerve (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; 60 percent disability rating is for an incomplete paralysis with marked muscular atrophy. Disability ratings of 40 percent, 20 percent, and 10 percent are assignable for incomplete paralysis which is moderately-severe, moderate, or mild in degree. 38 C.F.R. § 4.124a, DC 8520. The term “incomplete paralysis” with peripheral nerve injuries 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 involvement is wholly sensory, the rating should be for mild, or at most, moderate degree. Note preceding DC 8510. 38 C.F.R. § 4.124a. Words such as “severe,” “moderate,” and “mild” are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 C.F.R. §§ 4.2, 4.6. The record reflects several VA examinations for the Veteran’s back disability which includes neurological manifestations; however, none of the examinations show any muscle atrophy. A February 2008 VA examination documented findings that did not include any reference to muscle atrophy. VA examinations in December 2011, October 2016 and September 2019 each included the examiners’ specific notation that there was no muscle atrophy. The Veteran’s private and VA medical treatment records document that the Veteran has radiating back pain down his legs and that his feet and toes were numb. However, there is no documentation of any muscle atrophy in the records. The Board finds the throughout the entire period on appeal, the lower extremity sciatic nerve disabilities were not manifested by muscle atrophy and do not meet or more closely approximate the criteria for a 60 percent disability rating. Absent findings of muscle atrophy, a rating greater than 40 percent for severe incomplete paralysis is not warranted. In deciding the increased rating claims, the Board has also considered the Veteran’s lay statements that his left and right lower extremity IVDS affecting the sciatic nerve are worse than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran’s subjective complaints of increased symptomatology. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable because the preponderance of the evidence is against higher ratings. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7, 4.71a, 4.124a, 4.130. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.