Citation Nr: 21025638 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-04 062 DATE: April 28, 2021 ORDER Entitlement to a disability rating in excess of 20 percent prior to November 18, 2016 for right lower extremity radiculopathy is denied. Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy is denied. REMANDED Entitlement to a disability rating in excess of 60 percent from November 18, 2016 to July 1, 2019 and as 40 percent since July 1, 2019 (not including a period of temporary total evaluation) for lumbar strain with degenerative arthritis, spondylosis, and intervertebral disc syndrome (IVDS) is remanded. FINDINGS OF FACT 1. The probative evidence of record reflects that, prior to November 18, 2016, the Veteran’s right lower extremity radiculopathy, at worst, was productive of moderate symptoms of radiculopathy. 2. Throughout the duration of the appeal, the probative evidence of record reflects that the Veteran’s left lower extremity radiculopathy, at worst, was productive of moderate symptoms of radiculopathy. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent prior to November 18, 2016 for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for entitlement to a disability rating in excess of 20 for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1974 to July 1994. In June 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In December 2019, the Veteran’s claims were denied by the Board. The Veteran appealed the denial of his claims to the Court of Appeals for Veterans Claims (Court), which vacated the Board’s December 2019 denials and remanded the appeal for further consideration in an August 2020 Order granting a Joint Motion for Remand (JMR). In the Court’s decision, it was agreed upon that the Board failed to provide an adequate statement of reasons or bases for denying a rating in excess of 20 percent for right lower extremity radiculopathy, prior to November 18, 2016, and for left lower extremity, prior to November 18, 2016, and from November 18, 2016, because the Board failed to explain how it interpreted the relevant diagnostic code. In addition, the Board failed to provide an adequate statement of reasons and bases for denying a rating in excess of 40 percent from November 18, 2016 for lumbar strain with degenerative arthritis, spondylosis and IVDS because it failed to consider relevant evidence. The Board notes that a February 2020 rating decision granted a 60 percent rating for the Veteran’s lumbar spine disability from November 18, 2016 to April 22, 2019, granted a temporary total evaluation from April 22, 2019 to July 1, 2019, and then continued a 40 percent rating since July 1, 2019. Therefore, the Board has recharacterized the lumbar spine disability issue as reflected on the title page. In consideration of the above, the Board will adjudicate the issues once again below. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. 1. Entitlement to a disability rating in excess of 20 percent prior to November 18, 2016 for right lower extremity radiculopathy 2. Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy The Board previously rated the Veteran’s right and left lower extremity radiculopathy under Diagnostic Code 8520, which provides that a moderate incomplete paralysis warrants a 20 percent disability rating, and that a moderately severe incomplete paralysis warrants a 40 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. However, in the Board’s previous decision it did not articulate what it considered to be “moderate” and “moderately severe,” in terms of the evidence before it. As such, the Court has determined that the Board should do so in this decision. The radiculopathy of the right lower extremity and left lower extremity are currently rated under DC 8520, which provides ratings for paralysis of the sciatic nerve. DC 8520 indicates that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis with marked muscular atrophy is rated 60 percent disabling. Complete paralysis of the sciatic nerve, that is, where 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 term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. These descriptive words “mild,” “moderate,” “moderately severe” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. For the period prior to November 18, 2016, the probative evidence of record, including private and VA medical records and the September 2015 VA examination and November 2016 VA examination, demonstrates that the Veteran’s radiculopathy of the right lower extremity and left lower extremity, at worst, were productive of moderate symptoms of radiculopathy. In Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018), the U.S. Court of Appeals for Veterans Claims noted that “DC 8520 does not define ‘mild,’ ‘moderate,’ ‘moderately severe,’ or ‘severe,’ or generally associate those terms with specific symptoms.” One possible source for such definitions would be the dictionary. Webster’s II New College Dictionary defines “mild,” as relevant here, as “not severe.” Id. at 694 (1995). A synonym for “mild” is “slight,” and definitions for “slight” includes “small in size, degree, or amount.” Id. at 1038. The definitions for “moderate” include “of average or medium quantity, quality, or extent.” Id. at 704. Finally, definitions for “severe” include “extremely intense.” Id. at 1012. It is also noted that the term “moderately severe” includes impairment that is considered more than “moderate” but not to the extent as to be considered “severe.” In the September 2015 VA examination, the Veteran’s left lower extremity radiculopathy was characterized as moderate and in the November 2016 VA examination, the right lower extremity radiculopathy was characterized as moderate. Interpreting the most favorable reading of these findings, the Board finds the November 2016 VA examination is reflective of the right lower extremity and left lower extremity symptoms at their worst for the period prior to the date of this examination. In addition, the probative evidence of record prior to November 18, 2016 is absent of any findings of moderately severe or severe symptoms, moderately severe or severe incomplete paralysis of the sciatic nerve, or complete paralysis of the sciatic nerve in either the right or left lower extremity. The Board notes that the Veteran’s symptoms have been regarded as of average or medium extent (moderate), rather than as extremely intense, or to the extent as to be considered severe (moderately severe). Moreover, the evidence prior to November 2016 shows that the Veteran’s right lower extremity radiculopathy and left lower extremity radiculopathy symptoms were wholly sensory, as the Veteran did not experience any bowel or bladder problems, muscular atrophy, or pathologic reflexes as a result of his radiculopathy. 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. Thus, for the period prior to November 18, 2016 the probative evidence of record establishes that the right lower extremity radiculopathy and left lower extremity radiculopathy more nearly approximate the 20 percent disability ratings currently assigned under DC 8520. 38 C.F.R. § 4.124a. For the period from November 18, 2016, the probative evidence of record, including private and VA medical records and the August 2017 VA examination, demonstrates that the Veteran’s left lower extremity radiculopathy, at worst, was productive of mild symptoms. However, the Board notes that the Veteran had intermittent pain in the left lower extremity that was moderate in nature. Interpreting the most favorable reading of these findings, the Board finds the August 2017 VA examination is reflective of moderate left lower extremity symptoms at their worst for the period under consideration. During this period, the probative evidence of record is absent of any findings in the left lower extremity of moderately severe or severe incomplete paralysis of the sciatic nerve with marked muscular atrophy, or complete paralysis of the sciatic nerve. The Board once again notes that moderately severe, per the dictionary, may be described as more than moderate, but not to the extent as to be considered severe. However, the Veteran’s symptoms have been regarded as of average or medium extent (moderate). Moreover, the evidence since November 2016 shows that the Veteran’s left lower extremity radiculopathy symptoms were wholly sensory, as the Veteran did not experience any bowel or bladder problems, muscular atrophy, or pathologic reflexes as a result of his radiculopathy. 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. Thus, for the period from November 18, 2016, the probative evidence of record establishes that the left lower extremity radiculopathy more nearly approximates the 20 percent disability rating currently assigned under DC 8520. 38 C.F.R. § 4.124a. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 60 percent from November 18, 2016 to July 1, 2019 and as 40 percent since July 1, 2019 (not including a period of temporary total evaluation) for lumbar strain with degenerative arthritis, spondylosis, and intervertebral disc syndrome (IVDS) is remanded. The Veteran contends that his lumbar spine disability should be awarded a higher rating than is currently assigned. In the August 2020 JMR, the Court noted that the Board had not considered the Veteran’s lay statements regarding prescribed bed rest. At the Veteran’s June 2019 hearing before the Board, the Veteran testified that he had been prescribed bed rest “it seems like every other month from anywhere from 10 to 12 to 14 days.” See Hearing Transcript at 8. After a review of the claims file, the Board finds that remand is warranted to obtain outstanding medical treatment records. The available evidence does not contain medical records documenting any periods of prescribed bed rest. As medical records documenting bed rest may be relevant to the claim on appeal, the Board finds that remand is warranted to attempt to obtain any outstanding medical records indicating that the Veteran was prescribed bed rest due to his lumbar spine condition. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any outstanding, relevant private treatment records, to include any medical treatment records indicating that the Veteran has been prescribed bed rest due to his lumbar spine condition. Make two requests for any records so identified unless it is clear after the first request that a second request would be futile. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.