Citation Nr: 21023607 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-06 815A DATE: April 21, 2021 ORDER Entitlement to an initial rating of 20 percent but not higher, for left lower extremity radiculopathy affecting the sciatic nerve from August 15, 2013 to October 27, 2014 is granted. Entitlement to an initial disability rating of 20 percent but not higher, for right lower extremity radiculopathy affecting the sciatic nerve from August 15, 2013 to October 27, 2014 is granted. REMANDED Entitlement to a disability rating greater than 20 percent for left lower extremity radiculopathy affecting the sciatic nerve from October 27, 2014 is remanded. Entitlement to a disability rating greater than 20 percent for right lower extremity radiculopathy affecting the sciatic nerve from October 27, 2014 is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the left lower extremity radiculopathy affecting the sciatic nerve has manifested to moderate incomplete paralysis from August 15, 2013 to October 27, 2014. 2. Resolving all reasonable doubt in favor of the Veteran, the right lower extremity radiculopathy affecting the sciatic nerve has manifested to moderate incomplete paralysis from August 15, 2013 to October 27, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 20 percent, but not higher, for service-connected left lower extremity radiculopathy affecting the sciatic nerve, form August 15, 2013 to October 27, 2014 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for entitlement to an increased rating of 20 percent, but not higher, for service-connected right lower extremity radiculopathy affecting the sciatic nerve, from August 15, 2013 to October 27, 2014 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to January 1994, from October 2001 to May 2002, from November 2003 to April 2008, and from August 2008 to November 2009. This matter is on appeal before the Board of Veterans’ Appeals (Board) from March 2014 and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) that assigned a 10 percent disability rating effective August 15, 2013 and a 20 percent disability rating, effective October 27, 2014 for the Veteran’s left and right lower extremity radiculopathy respectively. The matter was previously before the Board in February 2019, where it was remanded for consideration of evidence received after the issuance of the March 2015 Statement of The Case (SOC). In July 2020, the RO issued a Supplemental Statement of the Case (SSOC), which continued the denial of the Veteran’s claims. The matter has returned to the Board for an appellate review. Increased Rating 1. Entitlement to an initial rating of 20 percent but not higher, for left lower extremity radiculopathy affecting the sciatic nerve from August 15, 2013 to October 27, 2014 2. Entitlement to an initial disability rating of 20 percent but not higher, for right lower extremity radiculopathy affecting the sciatic nerve from August 15, 2013 to October 27, 2014 Disability ratings are determined by applying the criteria set forth in the schedule of ratings. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran's disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as "pyramiding," is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. Service connection for the Veteran's bilateral lower extremity radiculopathy affecting the sciatic nerve was awarded in the March 2014 rating decision, with a 10 percent evaluation assigned effective August 15, 2013 (the date VA received claim). Subsequently, in a June 2015 rating decision, the Veteran was awarded an increased rating of 20 percent effective October 27, 2014 (date of informal increased rating claim). The Veteran's bilateral lower extremity radiculopathy affecting the sciatic nerve is currently rated as 10 percent disabling, from August 15, 2013 to October 27, 2014 under the appropriate DC 8520. Under DC 8520, a 10 percent evaluation is warranted for mild incomplete paralysis; a 20 percent evaluation is warranted for moderate incomplete paralysis; a 40 percent evaluation is warranted for moderately severe incomplete paralysis; a 60 percent evaluation is warranted for severe, with marked muscular atrophy, incomplete paralysis; and the highest evaluation of 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of 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, Diseases of the Peripheral Nerves. The words "mild," "moderate" and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In a March 2011 VA back examination, the Veteran reported pain above the belt line which he describes as constant in nature. He noted that he sits comfortably for two hours, drives for one and half hours and that his walking tolerance is unknown. He stated that warm shower seems to help him but noted limited mobility and stiffness in the morning. He reported that he experiences occasional radiation to the legs. The examiner noted a diagnosis of degenerative disc disease lumbar spine S/P laminectomy and discectomy with lower back pain and subjective complaints of radiculopathy. See March 2011 VA Examination. An April 2013 Primary Care Outpatient Initial Evaluation Note indicated that the Veteran complained of continued low back pain, with radiation down the right lower extremity, but that he has radiation down the left at times. The Veteran stated that pain persisted despite epidural injections, physical therapy and neurostim implant. See Medical Treatment Record - Government Facility. In a May 2013 Neurology Consult note, the physician noted that the Veteran has severe low back pain and lumbar radiculopathy despite opiod medications and implanted neurostim. And that every conservative treatment has been exhausted. See May 2013 Medical Treatment Record - Government Facility. In a May 2014 VA Back examination, the examiner noted the Veteran's radiculopathy. Upon examination, the Veteran reported having mild paresthesias/dysesthesias, and mild numbness of the bilateral lower extremity. The examiner remarked that while the Veteran report of tingling and numbness is acknowledged, no sensory deficit is noted and that reflexes were normal. See February 2014 C&P Examination. At a May 2015 VA Back examination, the Veteran noted mild symptoms of constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness bilaterally. The examiner concluded that the Veteran's bilateral lower extremity radiculopathy was of a moderate severity level. See May 2015 C&P Examination. Based on the above, the Board finds that an increased rating of 20 percent is warranted for the Veteran's bilateral lower extremity radiculopathy affecting the sciatic nerve, from August 15, 2013 to October 27, 2014. The evidence of record during this appeal period is sufficient to meet the criteria under DC 8520 for an evaluation of 20 percent, as the severity of the Veteran's bilateral lower extremity radiculopathy has consistently revealed symptoms that more closely approximate a moderate severity level; which is commensurate of a 20 percent evaluation under DC 8520. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board concludes that an increased rating of 20 percent, but not higher, for the Veteran's service-connected bilateral lower extremity radiculopathy affecting the sciatic nerve, for the period on appeal, is warranted; and to this extent, the claims are granted. The Board notes that the weight of the evidence of record is against a rating in excess of 20 percent during this period on appeal, as the Veteran's bilateral lower extremity radiculopathy does not rise to the severity level of moderately severe or severe incomplete paralysis; or complete paralysis. Even with consideration of symptoms such as pain, the Veteran's bilateral lower extremity disabilities have not more nearly approximated a moderately severe sciatic nerve disability for the period under review. REASONS FOR REMAND 1. Entitlement to a disability rating greater than 20 percent for left lower extremity radiculopathy affecting the sciatic nerve from October 27, 2014 is remanded. 2. Entitlement to a disability rating greater than 20 percent for right lower extremity radiculopathy affecting the sciatic nerve from October 27, 2014 is remanded. The Veteran asserts that he is entitled to a disability rating greater than 20 percent from October 27, 2014 for his bilateral lower extremity radiculopathy. In a May 2015 private treatment record, it was indicated that the Veteran is in pain most days and that pain keeps him from enjoying everyday activities and flare-ups are reoccurring. In June 2015, the Veteran indicated that his current pain levels are 8 out of 10 for right leg; and 7 out of 10 for left leg on a scale of 1 to 10 (10 being the highest). See Medical Treatment Record - Non-Government Facility The Board acknowledges an August 2015 VA Back examination, which noted moderate incomplete paralysis of the sciatic nerve bilaterally, and a June 2016 VA Peripheral Nerves Conditions examination which concluded mild incomplete paralysis of the sciatic nerve bilaterally. However, these examinations do not appear to reflect the current severity of the Veteran's service-connected bilateral lower extremity radiculopathy. Notably, the Veteran asserts his bilateral lower extremity radiculopathy are manifested by daily pain rated at 8 and 7 out of 10, even with strong prescription medication, and affects his ability to do basic activities, stand, sit or walk for prolonged periods. The Veteran also reported flare-ups occurring frequently. Reexaminations are generally required whenever VA determines there is a need to verify the current severity of a disability. See 38 C.F.R. § 3.327(a); see also Allday, 7 Vet. App. at 526. In consideration of the foregoing, the Board finds a remand is required to afford the Veteran a VA examination to determine the current severity of his service-connected bilateral lower extremity radiculopathy. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. 2. After completion of the foregoing, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is   due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.