Citation Nr: 21026547 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-18 647 DATE: May 3, 2021 ORDER Entitlement to an initial disability rating of 20 percent, though no higher, for right lower extremity radiculopathy is granted. Entitlement to an initial disability rating of 20 percent, though no higher, prior to November 19, 2015 for left lower extremity radiculopathy is granted. Entitlement to an initial disability rating in excess of 20 percent from November 19, 2015 to November 22, 2016 for left lower extremity radiculopathy is denied. Entitlement to an initial disability rating of 20 percent from November 22, 2016, though no higher, for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. Throughout the duration of the appeal, the probative evidence of record indicates the Veteran's right lower extremity radiculopathy, at worst, was productive of moderate incomplete paralysis of the sciatic nerve. 2. Throughout the duration of the appeal, the probative evidence of record indicates the Veteran's left lower extremity radiculopathy, at worst, was productive of moderate incomplete paralysis of the external popliteal (common peroneal) nerve. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 20 percent, though no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for an initial disability rating of 20 percent, though no higher, prior to November 19, 2015 for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8521. 3. The criteria for an initial disability rating in excess of 20 percent from November 19, 2015 to November 22, 2016 for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8521. 4. The criteria for an initial disability rating of 20 percent, though no higher, from November 22, 2016 for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2009 to February 2013. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge of the Board of Veterans' Appeals (Board) in March 2019. A transcript of that hearing has been associated with the claims file. In a November 2019 decision, Board remanded the claims for increased ratings for radiculopathy of the right and left lower extremities for additional development and adjudicated the remaining issues on appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might 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 analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e. "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's right lower extremity radiculopathy is currently rated under DC 8520, which provides ratings for paralysis of the sciatic nerve. DC 8520 reflects that 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; and severe incomplete paralysis with marked muscular atrophy is rated as 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 Veteran's left lower extremity radiculopathy is currently rated under DC 8521, which provides ratings for paralysis of the external popliteal nerve (common peroneal). DC 8521 provides a 10 percent disability rating for mild incomplete paralysis; moderate incomplete paralysis is rated as 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. A 40 percent disability rating is provided where there is complete paralysis of the external popliteal nerve, with the following: foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 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. 1. Right Lower Extremity Radiculopathy Throughout the duration of the appeal, the probative evidence of record, including an October 2014 Disability Benefits Questionnaire (DBQ), private and VA medical records, and VA examinations from November 2015, November 2016 and October 2020, indicates the Veteran's right lower extremity radiculopathy, at worst, was productive of moderate incomplete paralysis of the sciatic nerve. Despite there being no findings of radiculopathy in the right lower extremity in an October 2014 DBQ and the November 2015 VA examinations of the thoracolumbar spine and peripheral nerves, and mild neurological symptoms of the right lower extremity noted in the October 2020 VA examination, the Board observes that radiculopathy in the right lower extremity was noted in private treatment records from September 2011 to June 2012, dating back to the Veteran's period of active service, and moderate radiculopathy symptoms of the right lower extremity were found in both a January 2015 private treatment report and a November 2016 VA examination. Accordingly, the Board finds the probative evidence of record establishes that the radiculopathy of the right lower extremity more nearly approximates the criteria for moderate incomplete paralysis of the sciatic nerve. The probative evidence of record is absent of any findings of moderately severe or severe incomplete paralysis of the sciatic nerve with marked muscular atrophy in the right lower extremity. Thus, the probative evidence of record establishes that the radiculopathy of the right lower extremity warrants an initial disability rating of 20 percent, though no higher, throughout the duration of the appeal under DC 8520. 38 C.F.R. §§ 4.3, 4.7, 4.124a; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Left Lower Extremity Radiculopathy Throughout the duration of the appeal, the probative evidence of record, including private DBQs from December 2013 and October 2014, private and VA medical records, and VA examinations from November 2015, November 2016 and October 2020, indicates the Veteran's left lower extremity radiculopathy, at worst, was productive of moderate incomplete paralysis of the sciatic nerve. Despite there being no findings of radiculopathy in the left lower extremity in November 2016 VA examination and findings of mild radiculopathy symptoms in an October 2014 private DBQ, the November 2015 VA examinations of the thoracolumbar spine and peripheral nerves and October 2020 VA examination, the Board observes moderate radiculopathy symptoms of the left lower extremity were found in both a December 2013 private DBQ and a January 2015 private treatment report. Accordingly, the Board finds the probative evidence of record establishes that the radiculopathy of the left lower extremity more nearly approximates the criteria for moderate incomplete paralysis of the external popliteal nerve throughout the duration of the appeal. The probative evidence of record is absent of any findings of severe incomplete paralysis or complete paralysis of the external popliteal nerve in the left lower extremity. Therefore, a disability rating in excess of 20 percent is not warranted at any time throughout the duration of the appeal. Thus, the probative evidence of record establishes that the radiculopathy of the left lower extremity warrants an initial disability rating of 20 percent, though no higher, prior to November 19, 2015, does not warrant an initial disability rating in excess of 20 percent from November 19, 2015 to November 22, 2016, and warrants a disability rating of 20 percent, though no higher, from November 22, 2016 under DC 8521. 38 C.F.R. §§ 4.3, 4.7, 4.124a; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saira Spicknall, 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.