Citation Nr: 21015688 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-32 473 DATE: March 18, 2021 ORDER A disability rating in excess of 10 percent prior to August 12, 2020, and in excess of 20 percent from August 12, 2020 for service-connected radiculopathy of the right lower extremity is denied. FINDINGS OF FACT 1. Prior to August 12, 2020, the evidence demonstrates that the radiculopathy of the Veteran’s right lower extremity has manifested impairment approximating no more than mild incomplete paralysis. 2. Since August 12, 2020, the evidence demonstrates that the radiculopathy of the Veteran’s right lower extremity has manifested impairment approximating no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to August 12, 2020 for the service-connected radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 2. The criteria for a rating in excess of 20 percent since August 12, 2020 for the service-connected radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1985 to May 1989 and from May 1989 to April 1998. During the current appeal, and specifically in July 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. By way of history, an October 2015 Department of Veterans Affairs (VA) Regional Office (RO) decreased the rating from 10 percent to zero percent disabling for the radiculopathy of the Veteran’s right lower extremity. The Veteran subsequently appealed that adverse rating action to the Board of Veterans’ Appeals (Board). In a December 2019 Board decision, the 10 percent rating was restored, effective January 1, 2016. The Board also remanded the issue of entitlement to a rating higher than 10 percent. Then, in an August 2020 Decision Review Officer decision, the Veteran’s rating for her right lower extremity radiculopathy was increased from 10 percent to 20 percent disabling effective August 12, 2020. As 20 percent does not represent the highest possible rating for this disability, and as the Veteran is seeking the highest rating, this issue remains in appellate status at the Board. Increased Ratings – Radiculopathy Of The Right Lower Extremity 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different findings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 8520, which provides criteria for rating impairment of the sciatic nerve, a 10 percent evaluation is warranted for mild incomplete paralysis. A 20 percent rating requires moderate incomplete paralysis, and a 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. The next higher evaluation of 60 percent requires severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent rating requires complete paralysis of the sciatic nerve, in which the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or lost. The Board acknowledges that words such as “moderate,” “moderately severe,” and “severe,” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence 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. Under 38 C.F.R. § 4.123, neuritis (characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating) is to be rated on the scale for the nerve involved, with a maximum equal to severe incomplete paralysis. This code further provides that for neuritis (other than for the sciatic nerve) not characterized by the organic changes referred to the maximum rating will be that for moderate incomplete paralysis. Under 38 C.F.R. § 4.124 (2016), neuralgia (characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve) is to be rated with a maximum equal to moderate incomplete paralysis. The term “incomplete paralysis,” with this and other 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 the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Prior to August 12, 2020 A January 2013 VA back examination resulted in a diagnosis of lumbar spine spondylosis with radiculopathy of the right sciatic nerve. The right lower extremity radiculopathy was noted to be mild in severity. As such, the Veteran was service-connected for this disability, effective October 16, 2012, and was assigned a 10 percent rating, pursuant to Diagnostic Code 8520. See 38 C.F.R. § 4.124a. Based on the results of an April 2015 VA examination, the Veteran’s 10 percent rating was reduced but later reinstated. The Veteran asserts that the service-connected radiculopathy of her right lower extremity is more severe than her 10 rating reflects, for the period prior to August 12, 2020. At the April 2015 VA Disability Benefits Questionnaire (DBQ) for back conditions, the examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. No other neurologic abnormalities or findings related to the Veteran’s thoracolumbar spine were indicated. There was no muscle atrophy; deep tendon reflexes were normal; and sensation to light touch testing results were normal. Straight leg raising test results were negative. No ankylosis was present. As previously stated, the Veteran was service-connected for radiculopathy of the right lower extremity as secondary to her service-connected back disability, effective October 16, 2012. This was based on the results of a January 2013 VA examination, which found right lower extremity sciatic radiculopathy that was mild in severity. VA outpatient treatment records, dated November 2015 to December 2015, show that he complained of, and was treated for, chronic back and radicular leg pain. Notably, in December 2015, it was documented that he was seen for lower extremity pain. The treatment notes reveal that, upon further examination, her straight leg raising test results indicated possible radiculitis. VA treatment records note pain radiating from the Veteran’s spine to her leg. At the July 2019 Board hearing, the Veteran expressed her disagreement with the results of the April 2015 VA examination, which show that she no longer had radiculopathy of the right lower extremity. See Board Hearing Transcript at 3. She testified that, contrary to the results reported from that examination, she had not been able to do a straight leg raise for many years. Id. The Veteran further stated that she continues to have pain that radiates from her spine to her leg and that her leg sometimes gives out whenever she walks. Id. After a review of the evidence of record, the Board finds that a rating higher than the 10 percent assigned for her right lower extremity radiculopathy, for the period prior to August 12, 2020 is not warranted. Importantly, this disability did not more nearly approximate moderate incomplete paralysis such that a higher rating would be warranted under Diagnostic Code 8520, at any point during this portion of the appeal. Consideration has been given to the Veteran’s complaints of worsening symptoms, but there is no evidence of muscular atrophy, motor function impairment, or a decrease in reflexes. While she reported pain and numbness, strength and reflex testing results were normal on VA examination. Symptoms associated with radicular pain and radiculopathy were described as “mild” at a January 2013 VA examination. Except for the April 2015 VA examination, where radiculopathy was not found, no other evidence was presented during this appeal period to contradict the description of this disability as being mild in severity. The next-higher rating of 20 percent requires evidence of moderate incomplete paralysis of the sciatic nerve, which has not been shown on any VA examination or throughout the Veteran’s medical records. There is simply no objective medical evidence indicating moderate incomplete paralysis; thus, an evaluation higher than 10 percent for the Veteran’s right lower extremity radiculopathy is not warranted at any point during the period prior to August 12, 2020 under Diagnostic Code 8520. Since August 12, 2020 Effective August 12, 2020, the Veteran was assigned a 20 percent rating for her right lower extremity radiculopathy. She seeks a rating in excess of 20 percent from August 12, 2020. On VA peripheral nerves examination in August 2020, where the examiner noted symptoms of constant pain and paresthesias and/or dysesthesias of the right lower extremity, described as moderate in severity. There was no muscle atrophy. Both reflex and sensory examination results were normal. Muscle strength testing results were normal. The Veteran’s gait was abnormal, with a slight favor shown to the right side when getting up from the chair and with ambulation, due to radiculopathy originating from sciatic nerve involvement. The Veteran does not use any assistive device as a normal mode of locomotion, although occasional locomotion by other methods may be possible. The examiner noted moderate incomplete paralysis of the right sciatic nerve. The examiner also noted that this peripheral nerve condition did not affect the Veteran’s ability to work. No other significant diagnostic test findings and/or results were noted. VA outpatient treatment records show reports of pain and soreness of the lower extremity similar to those noted during the VA examination. Accordingly, the Board finds that the Veteran is not entitled to a rating higher than the 20 percent currently assigned for her radiculopathy of the right lower extremity from August 12, 2020. The evidence does not demonstrate that the sciatic radiculopathy of the Veteran’s right lower extremity approximates moderately severe incomplete paralysis such that a higher rating would be warranted under Diagnostic Code 8520, at any point during the appeal period. Consideration has been given to the Veteran’s complaints of worsening symptoms. However, her symptoms do not appear to be so chronically pervasive to justify a higher rating, based on competent, credible examination reports indicating moderate pain. There is also no evidence of muscular atrophy or motor function impairment. While the Veteran reported pain and soreness, strength, sensory, and reflex testing results were normal during the VA examination. Further, the VA examiner characterized the Veteran’s right lower extremity radiculopathy as moderate. The next-higher rating of 40 percent requires evidence of moderately severe incomplete paralysis of the sciatic nerve, which has not been shown on any VA examination or throughout the Veteran’s medical records. There is simply no objective medical evidence indicating moderately incomplete paralysis; thus, an evaluation higher than 20 percent for the Veteran’s right lower extremity sciatic radiculopathy is not warranted at any point during the appeal period under Diagnostic Code 8520. In addition, neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues, unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board is sympathetic to the Veteran’s belief that a higher rating is warranted for her right lower extremity radiculopathy. However, the evidence of record, when compared to the rating criteria, does not warrant a rating in excess of 10 percent prior to August 12, 2020, or a rating in excess of 20 percent since August 12, 2020. Accordingly, the Board finds that the preponderance of the evidence is against this claim, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.