Citation Nr: 21023866 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-44 245 DATE: April 21, 2021 ORDER Entitlement to a 20 percent disability rating, but no higher, for right lower extremity radiculopathy is granted effective February 19, 2013. Entitlement to a disability rating of 20 percent, but no higher, for left lower extremity radiculopathy is granted effective February 19, 2013. FINDINGS OF FACT 1. Effective February 19, 2013, the Veteran’s right lower extremity radiculopathy is manifest by no more than moderate incomplete paralysis. 2. Effective February 19, 2013, the Veteran’s left lower extremity radiculopathy is manifest by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. Effective February 19, 2013, the criteria for a disability rating of 20 percent, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. Effective February 19, 2013, the criteria for a disability rating of 20 percent, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to September 1996. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. In July 2020, the Board took jurisdiction of the instant claims as part and parcel of the Veteran’s increased back disability claim. The Board granted a 40 percent evaluation for the Veteran’s back disability, effective February 2013, and remanded the instant claims for further development, to include providing VA examinations and updating VA treatment records. As the grant of a 40 percent evaluation for a back disability is considered a full grant of the benefit sought on appeal, only the claims for increased ratings for radiculopathy remain on appeal. The Board finds substantial compliance with the remand directives and therefore another remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). INCREASED RATING Generally, the effective date of compensation based on a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.§ 5110 (a); 38 C.F.R. § 3.400. However, the effective date for an increased rating claim may date back as much as one year before the date of the claim for increase if it is factually “ascertainable that an increase in disability had occurred” within that timeframe. See 38 U.S.C. § 5110 (b)(2). The Veteran filed the instant claim for an increased rating in February 2013. As an increased rating claim, the Board looks at the evidence in the year prior to this date to see the earliest date that it is factually ascertainable that an increase occurred. 38 C.F.R. § 3.400. The VA’s Schedule for Rating Disabilities is used to determine disability ratings once a disability is service connected. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In the Rating Schedule, Diagnostic Codes (DC) are assigned to specific disabilities. These DCs designate percentage ratings based on the average functional impairment of the Veteran due to a service-connected disability. 38 C.F.R. §§ 3.321, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran’s bilateral radiculopathy disabilities are evaluated under Diagnostic Code (DC) 8520. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with 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 disabling. 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. Regulations provide that ratings for peripheral neurological disorders are to be assigned based 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 level 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 disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. 1. Evaluation of right lower extremity radiculopathy The Veteran contends that his right lower extremity radiculopathy warrants a rating greater than 10 percent prior to February 4, 2014, and greater than 20 percent thereafter. A May 2013 rating decision granted service-connection for right lower extremity radiculopathy related to thoracolumbar strain with degenerative disc disease with an initial disability rating of 10 percent under DC 8520, effective February 19, 2013. A June 2015 rating decision increased the Veteran’s rating to 20 percent effective February 4, 2014. Regarding impairment of motor functions, though the February 2021 VA examination indicates the Veteran uses a cane occasionally for back and leg pain, the cane was initially prescribed for knee pain unrelated to his back or radiculopathy disabilities. Further, the Veteran’s gait has consistently been normal on examination. Regarding sensory disturbance, the record reflects continued reports of numbness and tingling with reported progression of the severity and location of the symptoms. Physical examinations reveal decreased sensation to bilateral legs and feet throughout the appellate period. However, the Veteran has consistently denied paresthesias and weakness of legs, falls, urinary or fecal incontinence, or saddle anesthesia. See, e.g., February 2015 and February 2017 VA treatment records. All VA examinations in file since July 2015 show decreased sensation in the feet and toes, with additional decreased sensation to the lower legs and ankles since the November 2016 VA examination. In February 2017, after the Veteran reported a progression of his radiating back pain, his VA physician ordered an MRI and EEG to determine the etiology of the increased symptoms. A March 2017 MRI showed lumbar facet arthropathy without canal or foraminal narrowing, most prominent at L4-5. A May 2017 electroencephalogram (EEG) diagnosed damage to the lateral cutaneous nerves of the thigh associated with abdominal obesity and protuberance and compression of those nerves. October 2019 VA treatment records reveal increased numbness with flexion. Regarding pain, the record reflects consistent reports of pain with reported progression of the severity and location of the pain. In an April 2013 letter, the Veteran reports that his back pain causes his legs to go numb, and that he feels tingling in his toes when this occurs. A March 2014 letter from private physician Dr. J.K. indicates pain in the bilateral thighs related to sciatic nerve impingement. December 2014 VA treatment records reveal reports of occasional radiating pain to both thighs. February 2017 VA treatment records the Veteran reported worsening of his low back pain for last couple of months. He rated the pain as 8/10, and reported it radiated down both legs. The Veteran indicated this was a progression from the past since previously it was radiating to his thighs only. In September 2019 and January 2020, the Veteran reported pain in his back with radicular symptoms down both legs posteriorly to both feet. At the February 2021 VA examination, the Veteran reported sharp pains from his back to his pelvis down to his legs. The legs are highly sensitive to touch. To ease the pain, he lies down, rests, and takes diclofenac and gabapentin. He reported he is not able to normal chores around the house because of pain, and the pain affects him at his job because he cannot sit or stand for long periods of time without pain and numbness. There are no allegations or evidence of loss of reflexes, muscle atrophy, complete paralysis, or trophic changes. Regarding muscle weakness, strength was normal at the July 2015 and November 2016 VA examinations. September 2019 and later VA treatment records show 4/5 weakness bilaterally, while the February 2021 VA examination showed normal strength bilaterally. The July 2015 and subsequent VA examinations have assessed the severity of the involvement of the sciatic nerve as moderate, incomplete paralysis. The only VA examination prior to that date, March 2013, did not assess the severity of the condition. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, muscle atrophy, complete paralysis, or loss of reflexes. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In summary, from the date the Veteran filed his claim, in February 2013, the record reflects continued reports of pain, numbness, and tingling with subjective progression of the severity and location of the symptoms. However, physical findings have remained generally consistent, with the exception of some evidence of progressive weakness (no worse than 4/5) and decreased sensation bilaterally. Additionally, though the February 2021 VA examination indicates the Veteran uses a cane occasionally for back and leg pain, the cane was initially prescribed for knee pain unrelated to his back or radiculopathy disabilities. The Veteran’s gait has consistently been normal on examination. The Board notes that the RO assigned an effective date of February 7, 2014 for the award of the 20 percent rating based on an oral intent to file received by the RO on that date. However, as indicated in our July 2020 remand, the instant claim is part and parcel of the claim for an increased rating for the Veteran’s back disability which was filed on February 19, 2013. Further, the Board finds no indication that the Veteran’s radiculopathy was any less severe prior to February 2014 than after that date. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds a rating of 20 percent, but no higher, is warranted effective February 19, 2013. The Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for right leg radiculopathy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Evaluation of left lower extremity radiculopathy The Veteran contends that his left lower extremity radiculopathy warrants a rating in excess of 20 percent. A September 2015 rating decision granted service-connection for left lower extremity radiculopathy related to thoracolumbar strain with degenerative disc disease with an initial disability rating of 20 percent under DC 8520, effective from February 7, 2014. The contentions and medical findings regarding the left leg are essentially the same as indicated above for the right leg, with the following exceptions. The March 2013 VA examination did not diagnose left lower extremity radiculopathy as it did right lower extremity radiculopathy. The first diagnosis of left lower extremity radiculopathy in the record is found in Dr. J.K.’s March 2014 letter. However, as above, the Veteran reported bilateral symptoms in his April 2013 letter. Regarding muscle atrophy, February 2015 VA treatment records show strength measured as 4+/5 on the left. November 2017 VA treatment records indicate very minimal weakness of the left leg compared to the right. As above, September 2019 and later VA treatment records show 4/5 strength in bilateral lower extremities, though the February 2021 VA examination showed normal strength. Regarding sensory disturbance, a February 2015 physical therapy assessment revealed decreased sensation to light touch on the left lower leg and ankle, though single leg balance was good bilaterally. As above, subsequent examinations revealed decreased sensation bilaterally throughout the remainder of the appellate period. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, muscle atrophy, complete paralysis, and loss of reflexes. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. The Board notes that the RO assigned an effective date of February 7, 2014 based on an oral intent to file received by the RO on that date. However, as above, the instant claim is part and parcel of the claim for an increased rating for the Veteran’s back disability, which was filed on February 19, 2013. Further, at the August 2019 Board hearing, the Veteran contended that the 2013 VA examiner, who diagnosed only right lower extremity radiculopathy, did not include everything the Veteran reported to him in the examination report. In addition, as above, the Veteran’s April 2013 letter indicates bilateral radiculopathy symptoms, and Dr. J.K.’s March 2014 letter confirms the diagnosis of bilateral radiculopathy. The Veteran is competent to describe readily observable symptoms of pain and loss of sensation. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, the Veteran’s statements regarding the onset and severity of his symptoms are internally consistent and generally consistent with the medical evidence of record. Accordingly, the Board finds the Veteran’s statements of bilateral radiculopathy symptoms prior to February 2014 to be competent, credible, and entitled to great weight. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran is entitled to a 20 percent rating for left lower extremity radiculopathy as of February 19, 2013, the date of his claim for an increased evaluation for his back disability. However, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for left leg radiculopathy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.L. Blevins, 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.