Citation Nr: 21026148 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-18 678 DATE: April 29, 2021 ORDER An initial disability rating of 20 percent for left leg radiculopathy is granted, subject to the laws and regulations governing the award of monetary benefits. A disability rating in excess of 40 percent for left leg radiculopathy from October 27, 2020, is denied. FINDINGS OF FACT 1. Prior to October 27, 2020, the Veteran’s left leg radiculopathy was manifested as moderate incomplete paralysis. 2. From October 27, 2020, the Veteran’s left leg radiculopathy has manifested as moderately severe incomplete paralysis. 3. At no time during the appeal period did the Veteran have muscle atrophy related to left leg radiculopathy. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating for left leg radiculopathy prior to October 27, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 2. The criteria for a 40 percent disability rating for left leg radiculopathy from October 27, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1999 to August 2008 and from January 2007 to April 2007. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2016 Agency of Original Jurisdiction (AOJ) decision which granted service connection for left leg radiculopathy and awarded a 10 percent disability rating. The Veteran disagreed with the rating assigned and perfected a timely appeal to the Board which issued a denial decision in January 2019. At the same time, the Board remanded the Veteran’s appeal for an increased rating for his low back disability. This matter is still with the AOJ and has not yet been recertified to the Board. It will be addressed in due course. The Veteran the appealed to the United States Court of Appeals for Veterans Claims. In a November 2019 Order, the Court approved a Joint Motion for Remand filed by both parties to the Case, vacated the Board’s January 2019 decision and remanded for further actions in accordance with the terms of the Joint Motion for Remand. The Board remanded to the AOJ in May 2020. The actions requested upon remand have now been accomplished and the matter has been returned to the Board for further appellate review. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). A neurological disability is evaluated on the basis of nerve paralysis, partial paralysis, neuritis, or neuralgia in proportion to the impairment of motor or sensory function. 38 C.F.R. §§ 4.120-4.124a. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. Finally, complete paralysis of the sciatic nerve, manifested by foot dangle and drop, no active movement possible of muscles below the knee, and flexion of the knee weakened or lost, warrants an 80 percent rating. The term “incomplete paralysis” with peripheral nerve injuries, indicates a degree of lost or impaired functional 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 should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement, when bilateral they are combined with application of the bilateral factor. 38 C.F.R. § 4.124a. Descriptive words, such as "mild," "moderate" 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. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. According to the report of a February 2016 VA examination, upon which the grant of service connection was based, the Veteran had intermittent pain down his left leg and into his foot. He characterized his pain as moderate to severe, and also reported left lower leg weakness. There was no muscle atrophy and sensory examination results were intact to light touch bilaterally. The examiner characterized the severity of the Veteran’s radiculopathy as mild, although the functional impact of his radicular pain was moderate. In reaching this conclusion, the examiner relied upon the clinical examination as well as the reports of a 2010 magnetic resonance imaging study showing foraminal narrowing and the report of electromyograph tests in 2008 and 2016 which were interpreted as showing no electrodiagnostic evidence of lumbar radiculopathy in the left leg. The examiner noted, however, that these findings do not exclude the possibility of nerve root irritation resulting in a purely sensory radiculitis which would contribute to the Veteran’s pain. The examiner also noted that the Veteran worked as a truck driver and had difficulty with prolonged sitting. It is this examination report which was deemed inadequate by the authors of the Joint Motion for Remand, as the examiner did not comment upon the impact of or estimate the additional impairment resulting from radicular flare-ups. To remedy this oversight, the Veteran was provided with a neurological examination in October 2020. The Veteran reported that he experienced severe pain, moderate tingling, and moderate numbness in his left leg. His employment as a truck driver aggravated his lower back pain and in turn, his leg symptoms. He reported increased difficulty lifting and exercising during flare-ups. Upon clinical examination, the examiner noted the Veteran had mild constant pain in his left leg, but with severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness in the left leg caused by his peripheral radiculopathy. Muscle strength was normal with no atrophy. Reflexes in the left knee and ankle were hypoactive. Light touch sensation testing was normal. Overall, the examiner characterized the Veteran’s left peripheral neuropathy as moderately severe incomplete paralysis. It is this examination report upon which the AOJ based the increase to 40 percent, representing moderately severe incomplete paralysis. In addition to the two VA examination reports, review of the Veteran’s VA treatment records shows relevant information regarding his left leg radiculopathy during the relevant time frame. These records reflect that the Veteran manages his pain with non-pharmacological modalities, including martial arts training, yoga, and over the counter anti-inflammatories. He indicated he has learned proper lifting techniques and bending techniques to avoid exacerbations to the extent possible. His medical records throughout the appeal period reflect his report that sitting for prolonged periods triggers pain and discomfort. The Veteran specifically denied experiencing numbness and weakness in the left leg in conjunction with the February 2016 electromyograph test. In an August 2016 statement, the Veteran indicated that although he desired to avoid prescription pain medication and to treat his radiculopathy holistically and with exercise, he continued to experience pain. He stated that his pain is significant, ranging from moderate up to days when he can barely move. Upon careful review, the Board finds that prior to October 2020, the Veteran’s left leg radiculopathy symptoms more nearly approximated moderate incomplete paralysis of the left sciatic nerve. To support this finding, the Board relies upon the Veteran’s own statements that he experiences days where he can barely move due to flares of pain, as well as the characterization of the February 2016 VA examiner that although the Veteran’s radiculopathy was mild, the functional impact of his radicular pain was moderate. The Board also finds the Veteran’s own statements regarding his pain and the fluctuating nature of his left leg radicular pain to be credible, and corroborated by the medical evidence. Given that his radiculopathy is exacerbated by the nature of job driving a truck, the Board finds that the 20 percent disability rating is more appropriate prior to October 2020. The Board finds that separate symptoms of neuritis or neuralgia are not shown to support a separate rating on this basis. Rather the pain and occasional numbness reported by the Veteran are contemplated within the disability ratings assigned herein. The medical records showing complaints of numbness cited by the authors of the Joint Motion for Remand which are dated in 2007 cannot be used to support a higher disability rating during the time period at issue here; which is from October 2015, when the Veteran filed his claim for entitlement to service connection for left leg radiculopathy, and the present time. The October 2020 VA examination report is the earliest evidence of moderately severe radicular symptoms. There simply is no medical corroboration of worsening prior to the October 2020 examination report. Therefore, there is no basis for the assignment of a higher rating prior to October 2020. At no point in the record is severe radiculopathy with marked muscle atrophy shown so as to support a 60 percent disability rating. Thus the evidence supports the award of a 20 percent disability rating under the provisions of Diagnostic Code 8520 from October 2015 through October 2020, while the preponderance of the evidence is against the award of a disability rating greater than 40 percent from October 2020 to the present. J. NICHOLS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Heather J. Harter, 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.