Citation Nr: 21025451 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-10 771 DATE: April 28, 2021 ORDER Entitlement to a 20 percent rating, but no higher, for radiculopathy of the left leg is granted. FINDING OF FACT During the entire period on appeal, the Veteran’s radiculopathy of the left leg has been manifested by moderate pain, paresthesias, and numbness in the left foot and leg, which more nearly approximates moderate incomplete paralysis of the sciatic nerve. CONCLUSION OF LAW The criteria for a rating of 20 percent, but no higher, for service-connected radiculopathy of the left leg have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from March 1967 to April 1970, including service in the Republic of Vietnam, and on active duty in the U.S. Coast Guard from December 1972 to March 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied a rating in excess of 10 percent for left leg radiculopathy. The Veteran’s timely Notice of Disagreement (NOD) was received by VA in May 2015. In March 2016, the RO issued a Statement of the Case (SOC). In March 2016, the Veteran perfected a timely appeal via his submission of a VA Form 9, on which he indicated he did not want an optional Board hearing. In October 2018, the Board remanded the matter for further evidentiary development. The development having been completed the Board finds the prior remand directives have been substantially complied with and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While the matter was in remand status, in a December 2020 rating decision, the RO increased the rating for left leg radiculopathy to 20 percent, effective December 15, 2020. Although a higher rating was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In December 2020, the RO issued a Supplemental Statement of the Case (SSOC). 1. Entitlement to a rating in excess of 10 percent prior to December 15, 2020, and in excess of 20 percent thereafter for radiculopathy of the left leg. By way of history, in an October 2013 rating decision, the RO awarded service connection for left leg radiculopathy and assigned an initial 10 percent rating, effective September 25, 2012. In November 2014, VA received the Veteran’s claim for an increased rating. The Veteran contends his left leg radiculopathy warrants a rating in excess of 10 percent because he experiences severe, constant pain which often wakes him up in the middle of the night. He reports that he has made trips to the hospital because the pain had become severe. See April 2015 NOD and March 2016 VA Form 9. For the reasons set forth below, the Board finds that a 20 percent rating, but no higher, is warranted from the date of receipt of the claim for an increased rating, November 6, 2014. Thus, a 20 percent rating is warranted for the entire period on appeal. Herein, the Board is granting a 20 percent rating for the entire period on appeal. The Veteran’s service-connected left leg radiculopathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, the criteria for paralysis of the sciatic nerve. 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 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 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. The Veteran’s claim of entitlement to an increased rating for left leg radiculopathy was received on November 6, 2014. In pertinent part, records from Naval Hospital Camp Lejeune show that in March 2013, the Veteran complained that for the past six months he had had left posterior thigh pain that was made worse with prolonged standing and sometimes by sitting. He also reported occasional left foot numbness and tingling, not positional related. An April 2013 MRI showed multilevel lumbar spondylosis causing at least mild central canal stenosis as well as severe right and moderate to severe left neural foraminal stenosis. Also noted was likely contact of the exiting right and questionably left L5 nerve roots at L5-S1 and likely contact of the exiting left sided L2 nerve root at L2-3. In July 2013, the Veteran was afforded a contract examination of his back. The Veteran reported that his wife is always telling him to pick up his feet when he is walking with her. He also reported the pain in his low back goes to his left leg and foot and that he has had sciatic nerve leg pain since March 2012. He also reported that he has difficulty bending over to tie his shoes, sitting for long periods, and getting out of bed. The examiner noted the Veteran had a positive straight leg raising test for his left leg. The VA examiner also noted the Veteran had severe intermittent pain in his left lower extremity and severe numbness in his left lower extremity. It was also noted that the Veteran had other signs or symptoms of radiculopathy described as hypersensitive to sensation testing on the left side. There was no decreased sensation with pinprick testing, but sensation was hypersensitive. The VA examiner indicated the Veteran’s radiculopathy involved the left L4/L5/S1/S2/S3 nerve roots (sciatic nerve) and the radiculopathy was overall moderate in severity on the left side. This VA examination indicated the Veteran did not use an assistive device or cane. The functional impact of the Veteran’s thoracolumbar spine disability was that it slowed the Veteran’s ability to work and, on days when the pain is worse, he does not bend over as much. During an April 2015 VA examination of the Veteran’s left knee, he reported numbness and pain in his left leg radiating from buttocks to foot. He indicated that he was unable to stand or walk for any length of time or distance. The Veteran reported his leg, hip, and foot pain cause functional impairment in the form of it being uncomfortable to walk for any length of time and hard to get down to pick up anything off the floor or doing anything that requires bending. While the examiner recorded that the Veteran stated that it was “uncomfortable to work for any length of time,” the word “work” appears to be a typographical error as all other descriptions of symptoms and functional impairment in the examination report discuss “walking” for any length of time. The VA examiner noted at that time the Veteran was occasionally using a cane if he had to walk a long time. At an April 2015 VA back examination, the VA examiner noted radiculopathy, left leg. The Veteran reported that his symptoms began on September 11 and he feels the numbness and pain in the left leg radiating from buttocks to foot. The Veteran reported he was told this pain was being caused by a pinched sciatic nerve and degeneration of the spinal cord. Again, the Veteran reported the symptoms make standing or walking for any length or distance very painful. The Veteran reported the symptoms have progressively gotten worse and he received physical therapy from June to August 2014 but that did not provide any noticeable improvement. When asked about flare-ups the Veteran reported he experiences flare-ups in his back and this impacts his function in that the leg pain causes him to walk with a limp which in turn puts pressure on his back and causes the back to ache more. The VA examiner noted the Veteran has radicular pain and mild numbness in his left lower extremity. Additionally, the VA examiner indicated the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) were involved on the left side and the Veteran had mild left side radiculopathy. The sensory exam also showed the Veteran had decreased sensation in his left foot/toes. The VA examiner also noted the Veteran used a cane occasionally if he was walking a long time. The examiner noted that the Veteran’s functional loss was not so diminished that amputation with prosthesis would serve the Veteran. When asked about functional impact, the Veteran noted the numbness in his foot makes it hard to walk in the morning. The VA examiner noted that the Veteran could not bend down toward his left foot to tie his shoe, but he can bend down to his right foot and his diagnosis of radiculopathy, left leg, is unchanged. In a June 2020 statement, the Veteran reported that he has numbness and pain in the left leg radiating from buttocks to foot. He reported he cannot stand or walk for any length of time or distance and there are times when it feels like his knee will give out from under him. There is aching in the knee at night which keeps him awake and he needs medication to relieve the pain and sleep. The Veteran reports it has progressively gotten worse. He also reported the numbness and pain in the left leg radiating from buttocks to foot and he was told it is caused by a pinched sciatic nerve and degeneration of the spinal cord. The Veteran reported he received physical therapy from June to August 2014 but that did not provide any noticeable improvement. Finally, the Veteran reported his leg pain causes him to walk with a limp which puts more pressure on his back and causes his back to ache more. In December 2020, the Veteran was afforded a VA peripheral nerves examination. After examining the Veteran and reviewing the record, the examiner provided the diagnosis of left leg radiculopathy. The Veteran described his left lower extremity pain/numbness as constant, radiating from his buttocks into foot. He reported that his left lower extremity numbness/pain is worse with standing (less than five minutes) and walking (half a block). The Veteran also reported he goes down the stairs sideways due to his condition. The examiner noted that the Veteran had mild numbness in his left lower extremity. There was some weakness in the Veteran’s left knee extension, left ankle plantar flexion, and left ankle dorsiflexion. The Veteran did not have muscle atrophy and his reflexes were all normal. The sensory exam showed decreased sensation in the Veteran’s left thigh/knee, and in the left lower leg/ankle, and the left foot/toes. The Veteran did not have any trophic changes and his gait was normal. While the Veteran’s right lower extremity nerves were all normal, his left sciatic nerve showed moderate incomplete paralysis, and the remainder of his lower extremity nerves were normal. The examination report notes the Veteran does not use an assistive device, such as a cane. The Board notes the contract examiner may have mis-checked the boxes at the beginning of the exam under Section III- symptoms. The Veteran has only complained of left lower extremity radiculopathy. Therefore, the Board is interpreting the moderate constant pain and moderate paresthesias and/or dysesthesias is referencing the Veteran’s left lower extremity. Applying the facts in this case to the legal criteria described above, the Board concludes that the Veteran’s left leg radiculopathy more nearly approximate the criteria for a 20 percent rating, and no higher, under DC 8520 for the entire period on appeal. Indeed, the evidence of record indicates that the Veteran’s left leg radiculopathy is manifested by, at worst, moderate incomplete paralysis. While more than one year prior to the period on appeal, the Veteran’s records from Naval Hospital Camp Lejeune show dating back to March and April 2013 the Veteran was consistently complaining of left posterior thigh pain and occasionally left foot numbness and tingling. The July 2013 VA examination confirmed the Veteran had left leg radiculopathy and opined that it was moderate in severity at that time. The April 2015 contract knee and lower leg examination showed the Veteran’s continued report of experiencing numbness and pain in his left leg radiating from his buttocks to foot and showed the Veteran required a cane to walk long distances. However, this examiner opined that the Veteran only experienced mild radiculopathy. The April 2015 contract back examination notes the Veteran’s left side radiculopathy was mild and the sensory exam showed the Veteran had decreased sensation in his left foot/toes. The records also show the Veteran was using a cane at that time if he needed to walk long distances. That examiner also noted the Veteran could not bend down toward his left foot to tie his show, but he could bend down to his right foot. All these symptoms are indicative of what the diagnostic code would consider a moderate radiculopathy rating. The December 2020 contract examination confirmed the Veteran has moderate constant pain in his left lower extremity, moderate paresthesias and/or dysesthesias in his left lower extremity, and mild numbness in his left lower extremities. The contract examination showed some weakness in the Veteran’s left knee extension, left ankle plantar flexion, and left ankle dorsiflexion. Additionally, the examiner opined that the Veteran has moderate incomplete paralysis in his left sciatic nerve. The Board acknowledges the lay assertions of constant severe pain in the Veteran’s left leg. However, the Board finds the medical of evidence of record to be more probative because while the Veteran is competent to report symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses, see Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to determine and assess the clinical level of symptomology. The Veteran has not shown to have the requisite medical, psychological, or vocational expertise in order to render such an assessment. See Jandreau v. Nicholson, 492 F.3d at 1376-77. The Board also finds that the most probative evidence of record is against a finding that the disability is manifested by trophic changes, muscle atrophy, or complete paralysis. Further, the Veteran’s lay statements have not alleged these associated symptoms, warranting an increased rating. The Veteran does not contend otherwise. As such, the Board finds that a rating greater than 20 percent is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has other neurological impairment in his left leg that have not already been service-connected. Rather, there is only involvement of the sciatic nerve. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. Based on the above, the Board finds that the Veteran’s left leg radiculopathy is primarily manifested by impairment of motor functions, sensory disturbance, loss of reflexes, and constant pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, muscle atrophy, or complete paralysis, that would warrant an increased rating in excess of 2 percent. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. Herein, the Board has granted an increased rating of 20 percent for the entire period on appeal. In so far as the Board is denying a rating greater than 20 percent, 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. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Penn, 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.