Citation Nr: 21021629 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-12 679 DATE: April 13, 2021 ORDER A rating higher than 20 percent for radiculopathy of the left lower extremity from February 12, 2016 is denied. FINDING OF FACT The Veteran’s radiculopathy of the left lower extremity manifested by no more than moderate incomplete paralysis from February 12, 2016. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for radiculopathy of the left lower extremity from February 12, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.120, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2001 to January 2005 in the U.S. Army. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in October 2019; a copy of the hearing transcript is of record. This matter was previously before the Board in November 2019, at which time the issue on appeal was remanded to afford the Veteran a VA examination. This case has now been returned to the Board for appellate consideration. The Veteran is seeking a higher rating for his service-connected radiculopathy of the left lower extremity. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. 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 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 claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran is assigned a 20 percent rating for radiculopathy of the left lower extremity from February 12, 2016 under DC 8520, which addresses impairment of the sciatic nerve. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. “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 partial regeneration. 38 C.F.R. § 4.120a, Disease of the Peripheral Nerve. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The terms “mild,” “moderate,” and “severe” are not defined in the VA Schedule for Rating Disabilities, and the use of terms by VA examiners and others, although an element to be considered by the Board, is not dispositive of the level of paralysis present. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve, a 20 percent rating is assigned for moderate incomplete paralysis, a 40 percent rating is assigned for moderately severe incomplete paralysis, a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy, and an 80 percent rating is assigned for complete paralysis with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or lost. The Veteran underwent a VA examination in February 2016. His left lower extremity radiculopathy manifested by moderate constant pain and moderate paresthesias and/or dysesthesias. Muscle strength testing was 4/5 for left knee extension and hip flexion. The examiner determined that the severity of the radiculopathy was moderate. The Veteran underwent another VA examination in May 2017. His left lower extremity radiculopathy manifested by mild intermittent pain, paresthesias and/or dysesthesias, and numbness. Muscle strength testing was normal. The Veteran’s left knee and left ankle deep tendon reflexes were hypoactive, and he had decreased sensation to light touch in his left thigh/knee. The examiner determined that the Veteran had mild radiculopathy. The Veteran underwent another VA examination in January 2019. His left lower extremity radiculopathy manifested by mild intermittent pain and paresthesias and/or dysesthesias. Muscle strength testing was 3/5 for left knee extension. The Veteran did not have trophic changes sensory and reflex examinations were normal. The examiner determined that the Veteran had mild radiculopathy of the left lower extremity. In October 2019, the Veteran testified that his radiculopathy symptoms include pain, numbness, tingling, and sometimes his leg gives out. See October 2019 Hearing Transcript. The Veteran underwent another VA examination in December 2019. His left lower extremity radiculopathy manifested by mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Muscle strength testing was 4/5 for left knee extension and his left foot sensation for light touch was decreased. The Veteran had a mild antalgic gait and regularly used a cane and occasionally used a walker to assist with ambulation. The examiner determined that the Veteran has mild incomplete paralysis of the sciatic nerve. Regarding functional impairment, the examiner found that the Veteran is unable to stand for prolonged periods of time. The Veteran’s VA treatment records are consistent with the VA examination findings. Based on the foregoing, the Board finds that the Veteran’s radiculopathy of the left lower extremity manifested by no more than moderate incomplete paralysis from February 12, 2016. The evidence of record does not show symptoms consistent with moderately severe radiculopathy of the left lower extremity any time during the appeal period. Therefore, a higher rating is not warranted. As such, a preponderance of the evidence weighs against a finding that the Veteran’s radiculopathy of the left lower extremity is more than 20 percent disabling. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.