Citation Nr: 21021353 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 96-02 955 DATE: April 12, 2021 ORDER An initial disability rating in excess of 10 percent for right lower extremity radiculopathy is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s right lower extremity radiculopathy was manifest by no more than wholly sensory mild incomplete paralysis. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.71a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1988 to July 1991. This case is before the Board of Veterans’ Appeals (Board) on appeal from an October 2019 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO), which bifurcated the Veteran’s increased rating claim for her service-connected lumbar spine disability and granted a separate service connection for right lower extremity radiculopathy. The Board remanded this case for further development in January 2020. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of an increased rating for the Veteran’s service-connected lumbar spine disability, service connection for a bladder disorder, and an earlier effective date for the right and left lower extremity radiculopathy are not before the Board. In November 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested a review of an October 2020 supplemental statement of the case (SSOC) and a September 2020 rating decision; therefore, the Board lacks jurisdiction over these issues. Increased Rating 1. Right lower extremity peripheral neuropathy. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of the disability. Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating a disability, the current examination reports in light of the whole recorded history are considered to ensure that the current rating accurately reflects the disorder’s severity. The medical and industrial history are to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The standard of proof to be applied in decisions for VA benefits claims is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information, including lay and medical evidence, of record in a case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The higher evaluation will be assigned when two disability evaluations are potentially applicable, and the disability picture more nearly approximates the criteria for the higher rating. 3 8 C.F.R. § 4.7. VA has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran’s right lower extremity radiculopathy is rated under the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8520 for paralysis of the sciatic nerve. Diagnostic Codes 8520, 8620, and 8720 provide ratings for sciatic nerve paralysis, neuritis, and neuralgia. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve. 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. Although medical professionals’ use of similar terminology should be considered, such use is not dispositive of an issue. Instead, all evidence must be evaluated in deciding on a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Regulations provide that ratings for peripheral neurological disorders are assigned based on 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 levels 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 Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for wholly sensory conditions instead of a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, a disability rating in excess of 10 percent is not warranted. In September 2016, a VA examiner observed mild intermittent pain in the Veteran’s right lower extremity, but no other signs or symptoms of radiculopathy bilaterally, and the EDX of the lower extremities was normal. A March 2017 VA treatment note indicates lumbar spine radiofrequency ablation (RFA) stopped radiation into the right lower extremity; however, subsequent treatment notes demonstrate waxing and waning of right lower extremity radicular pain. An October 2019 VA examiner noted the Veteran had right lower extremity radiculopathy symptoms of moderate intermittent pain, mild paresthesias or dysesthesias, and mild numbness. No other signs or symptoms of radiculopathy bilaterally were found. A February 2020 treatment note shows the Veteran reported bilateral lower extremity numbness and tingling and recent trigger point injections for severe right sciatic pain. The VA physical therapist found the Veteran’s bilateral lower extremity to be grossly intact to light touch, and her straight leg raise (SLR) test was negative bilaterally. In an August 2020 peripheral nerves conditions VA examination, the examiner determined the Veteran has bilateral mild incomplete paralysis of the sciatic nerve, which manifests in symptoms of mild intermittent pain, mild paresthesias or dysesthesias, and mild numbness in the bilateral lower extremity. As noted above, the Veteran’s right lower extremity radiculopathy manifests as intermittent pain occurring occasionally, mild paresthesias or dysesthesias, and mild numbness, and accompanied by no other symptoms or functional impairment. Thus, the radicular symptoms in the right lower extremity are wholly sensory in nature, and 38 C.F.R. § 4.124a provides that, when neurological involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In this case, the symptoms of pain associated with lower extremity radiculopathy occurred only intermittently, and numbness and tingling symptoms were mild and did not affect sensation to light touch. The right lower extremity radiculopathy symptoms do not result in functional impairment such as loss of reflexes, strength, or sensation to light touch or physical changes such as atrophy, trophic changes, or abnormal gait. In consideration of the evidence of record, the Board finds that the Veteran’s service-connected right lower extremity radiculopathy did not amount to mild neuritis, neuralgia, or moderate incomplete paralysis of the sciatic nerve; therefore, the criteria for a rating in excess of 10 percent for right lower extremity radiculopathy under Diagnostic Codes 8520, 8620, or 8720 have not been met for any period during the appeal. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a. In reaching its conclusions herein, the Board acknowledges the Veteran’s belief that her symptoms associated with her service-connected right lower extremity radiculopathy are more severe than the currently assigned disability rating reflects. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is certainly competent to describe her symptomatology, the Board has considered all of the evidence, included that provided by the Veteran both in statements and while seeking treatment or undergoing examinations, and concludes that the symptomatology, even that described by the Veteran, equates to no more than the criteria associated with a 10 percent rating. The Board has considered whether staged ratings under Fenderson are appropriate for the Veteran’s service-connected disabilities. However, the Board finds that her symptomatology has not warranted a rating in excess of 10 percent throughout the appeal period. Therefore, assigning staged ratings for the right lower extremity radiculopathy is not warranted. Further, the Veteran has not raised any other issues, nor has the record reasonably raised any issues within the Board’s jurisdiction regarding the initial rating claim for right lower extremity radiculopathy. Doucette v. Shulkin, 28 Vet. App. 366 (2017). (Continued on the next page)   Consequently, the Board finds that a higher initial rating for the Veteran’s service-connected right lower extremity radiculopathy is not warranted. In deciding to deny the claim, the applicability of the benefit of the doubt doctrine has been considered; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56; 38 C.F.R. § 3.102. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, 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.