Citation Nr: 21028234 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-53 306A DATE: May 10, 2021 ORDER For the rating period prior to November 25, 2016, entitlement to a 20 percent rating, but no higher, for right lower extremity radiculopathy is granted. For the rating period prior to November 25, 2016, entitlement to a 20 percent rating, but no higher, for left lower extremity radiculopathy is granted. For the appeal period beginning November 25, 2016, entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is denied. For the appeal period beginning November 25, 2016, entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. For the period on appeal prior to November 25, 2016, the evidence is at least in equipoise as to whether the Veteran's right and left lower extremity radiculopathy was manifested by moderate incomplete paralysis of the sciatic nerve. 2. For the entire rating period on appeal (both prior to and beginning November 25, 2016), the Veteran's right and left lower extremity radiculopathy did not more nearly approximate moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the appeal period prior to November 25, 2016, the criteria for a 20 percent rating, but no higher, for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620 (2020). 2. For the appeal period prior to November 25, 2016, the criteria for a 20 percent rating, but no higher, for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620 (2020). 3. For the appeal period beginning November 25, 2016, the criteria for a rating in excess of 20 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620 (2020). 4. For the appeal period beginning November 25, 2016, the criteria for a rating in excess of 20 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which assigned an increased rating of 10 percent for right lower extremity sensory dysfunction, effective May 27, 2015, and granted service connection for left lower extremity radiculopathy and assigned a 10 percent rating, effective May 27, 2015. In September 2020, the RO increased the ratings to 20 percent for right lower extremity radiculopathy (previously rated as right lower extremity sensory dysfunction) and left lower extremity radiculopathy, each effective November 25, 2016. This matter was before the Board in November 2018 and February 2021, when it was remanded for further development. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a) (2); 38 C.F.R. § 20.900(c). Increased Rating ClaimsLaws and Analysis Service connection for right lower extremity sensory dysfunction was originally established in a February 2010 rating decision and assigned a noncompensable rating, effective March 25, 2009. The Veteran underwent a routine VA examination for his service-connected lumbar spine degenerative disc disease in June 2015, during which the Veteran reported symptoms attributable to nerve conditions of the right and left lower extremities. The RO treated this as a claim for an increased rating for right lower extremity sensory dysfunction and service connection for left lower extremity radiculopathy. The June 2015 rating decision that is the subject of this appeal awarded an increased rating of 10 percent for right lower extremity sensory dysfunction; and granted service connection for left lower extremity radiculopathy and assigned a 10 percent rating, each under 38 C.F.R. § 4.124a, Diagnostic Code 8620, effective May 27, 2015. A September 2020 rating decision awarded increased ratings of 20 percent for the right and left lower extremity radiculopathy disabilities, effective November 25, 2016. The Veteran seeks a higher rating for his bilateral lower extremity radiculopathy, asserting, in essence, that the evidence shows, at a minimum, moderate nerve damage with inflammation and, at times, paralysis and spasmodic-type pain that radiates throughout his back and leg with constant, daily pain and that the condition will not get better. See May 2016 and November 2016 statements. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's bilateral lower extremity radiculopathy has been evaluated under the schedule of ratings for diseases of the peripheral nerves, specifically Diagnostic Codes 8520 and 8620, which provide ratings for paralysis and neuritis of the sciatic nerve. Ratings of 10, 20, 40 and 60 percent are assigned for incomplete paralysis that is, respectively, mild, moderate, moderately severe, and severe with marked muscle atrophy. An 80 percent rating is assigned for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. In rating diseases of the peripheral nerves, 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Descriptive words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all 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. The record contains VA back condition examinations in June 2015, February 2017 and April 2018, and VA peripheral nerves conditions examinations in June 2015 and September 2019. During the June 2015 VA back examination, the examiner diagnosed lumbar radiculopathy and noted radiculopathy symptoms of constant mild pain and mild numbness in the right and left lower extremities; moderate intermittent pain (usually dull) and moderate paresthesias and/or dysesthesias of the right lower extremity; and mild intermittent pain and mild paresthesias and/or dysesthesias of the left lower extremity. The nerve roots involved were L4/L5/S1/S2/S3 (sciatic nerves) and the severity of the radiculopathy was noted as mild on both sides. Straight leg testing was negative for both legs. During the June 2015 VA peripheral nerve conditions examination, the examiner noted peripheral nerve symptoms of constant mild pain and mild numbness of both lower extremities; moderate intermittent pain (usually dull) and moderate paresthesias and/or dysesthesias of the right lower extremity; and mild intermittent pain and mild paresthesias and/or dysesthesias of the left lower extremity. The nerve root involved was the sciatic nerve; no other nerve groups were affected. The examiner found mild incomplete paralysis of the right and left lower extremity sciatic nerve. During both June 2015 VA examinations, sensory examination showed normal sensation to light touch in the bilateral upper anterior thigh (L2), bilateral lower leg/ankle (L4/L5/S1), bilateral foot/toes (L5) and left thigh/knee (L3/4), and decreased sensation in the right thigh/knee (L3/4). Reflex examinations showed hypoactive (+1) bilateral knees and bilateral ankles, and no other neurologic abnormalities or signs or symptoms of radiculopathy were found. Further, there were no trophic changes; and muscle strength testing was normal with no muscle atrophy. The Veteran reported constant use of a back brace for support for his back condition and occasional use of a cane during flares or when walking extended distances; the examiner found the Veteran's gait was normal. The functional impact was described as the Veteran being unable to perform heavy physical labor that includes bending, lifting heavy objects, and prolonged walking and standing. A February 2017 VA back examiner diagnosed bilateral lower extremity radiculopathy. The Veteran reported radiating pain affecting both legs with associated numbness. The examiner noted radicular symptoms of moderate intermittent pain; moderate paresthesias and/or dysesthesias; and mild numbness of both lower extremities. There were no other signs or symptoms due to radiculopathy or any other neurologic abnormalities. The nerve roots involved were L4/L5/S1/S2/S3 (sciatic nerves), bilaterally, of moderate severity on both sides. Sensory examination showed normal sensation to light touch in the upper anterior thigh (L2) and thigh/knee (L3/4), bilaterally, and decreased sensation in lower leg/ankle (L4/L5/S1) and foot/toes (L5), bilaterally. Reflex examination showed hypoactive (+1) bilateral ankles but normal bilateral knees. Slightly reduced muscle strength of 4/5 was noted on bilateral ankle on dorsiflexion and great toe extension; and no muscle atrophy was present. Straight leg testing was negative for the right leg and positive for the left leg. The Veteran did not use any assistive devices. The functional impact was described as back pain that leads to poor tolerance for general physical work, especially heavy physical work involving lifting or twisting motions and poor tolerance for extended walking or driving. The examiner remarked that long-term spinal disease often results in nerve compression and radiculopathy, and there is no other known neurological disturbance in this case, which allows a more likely explanation of the current symptoms and examination findings. During the April 2018 VA back examination, the examiner indicated there was no radicular pain or other signs or symptoms of radiculopathy of the bilateral lower extremities or neurological abnormalities and no nerve root involvement. Reflex examination of the knees and ankles was normal bilaterally; and sensory examination revealed normal sensation to touch of the knees and ankles, bilaterally. Muscle strength testing was normal on both sides, and there was no muscle atrophy present. Straight leg testing was negative for both legs. The Veteran reported regular use of a back brace. The functional impairment of the Veteran's lumbar spine condition was described as no increased physical activity or heavy lifting and the Veteran is unable to stand or walk for extended distances. During the September 2019 VA peripheral nerves conditions examination, the examiner diagnosed bilateral lower extremity radiculopathy. The Veteran reported gradual, worsening bilateral radicular leg pain over the past 18 months, which he treats with pain medication. The examiner noted peripheral nerve symptoms of bilateral lower extremity moderate intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness. She noted pain of moderate severity that radiates from the low back down both legs to the feet, located in the low back and posterior legs to feet. The nerve roots involved were L4/L5/S1/S2/S3 (sciatic nerve), bilaterally, of moderate severity on both sides. The examiner indicated both sciatic nerves showed moderate incomplete paralysis. Sensory examination and reflexes examination were normal in all categories. There were no trophic changes attributable to peripheral neuropathy or muscle atrophy, and gait and muscle strength were normal. The Veteran reported constant use of a back brace and occasional use of a cane for his degenerative disc disease with lumbar radiculopathy. The functional impact was described as an inability to remain standing, walking or seated for prolonged periods and being unable to bend or carry heavy items without aggravating his radicular leg pain symptoms. The examiner remarked that the new diagnosis of right lower extremity radiculopathy is a correction of the previous diagnosis of right lower extremity sensory dysfunction, noting that degenerative disc disease leads to nerve root compression, as shown on magnetic resonance imaging (MRI), and the Veteran has symptoms of bilateral sciatica. After reviewing the record, the Board finds that the evidence is at least in equipoise as to whether 20 percent ratings are warranted for the right and left lower extremity radiculopathy disabilities under Diagnostic Codes 8520 and 8620 for the period on appeal prior to November 25, 2016. The June 2015 examinations showed decreased sensation to light touch in the thigh/knee on the left side. During the June 2015 VA examination, the Veteran reported bilateral lower extremity "constant" pain and numbness that was mild; left lower extremity mild paresthesias and/or dysesthesias of the left lower extremity; moderate intermittent pain and moderate paresthesias and/or dysesthesias of the right lower extremity. In addition to these findings, VA treatment records prior to September 25, 2016 reveal that the Veteran reported radiating pain down both thighs and down the right hip. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that 20 percent ratings for right and left lower extremity radiculopathy are warranted for the entire appeal period. The Board next finds that ratings in excess of 20 percent for the right and left lower extremity radiculopathy disabilities are not warranted for the entire rating period on appeal. To warrant the next highest rating, the evidence must show moderately severe incomplete paralysis. However, in this case, neither the right nor left lower extremity radiculopathy was manifested by objective findings that more closely approximate moderately severe incomplete paralysis. Rather, the February 2017 and September 2019 VA examiners found the Veteran's lower extremity radiculopathy involving the sciatic nerve was of moderate severity on both sides, and the September 2019 VA examiner determined the Veteran's radiculopathy showed moderate incomplete paralysis of both sciatic nerves. While sensory examination during the February 2017 VA examination showed decreased sensation in the bilateral lower leg/ankle and bilateral foot/toes, it also showed normal sensation in the bilateral upper anterior thigh and bilateral thigh/knee; and sensory examination during the April 2018 and September 2019 VA examinations were normal in all categories. While reflex examination during the February 2017 VA examination revealed hypoactive (1+) ankles on both sides, it did not show absent reflexes; further, it showed the Veteran's knee reflexes were normal bilaterally; and during the April 2018 and September 2019 VA examinations, reflex examination was normal for all tendons. Further, although the Veteran had slightly reduced muscle strength (4/5) on ankle dorsiflexion and great toe extension on both sides and positive straight leg testing of the left leg during the February 2017 VA examination, muscle strength testing was normal during the April 2018 and September 2019 VA examinations, and the February 2017, April 2018 and September 2019 VA examiners found no evidence of muscle atrophy. Further, the Veteran's gait was consistently noted as normal, and no tropic changes were noted by the September 2019 VA examiner. Additionally, the February 2017 and September 2019 VA examiners indicated that the sciatic nerve was the only nerve affected, and the April 2018 VA examiner found no nerve root involvement; and all three examiners found there were no other neurologic abnormalities or signs or symptoms of radiculopathy. While the Veteran reported regular use of a back brace during the April 2018 VA examination and constant use of a back brace and occasional use of a case during the September 2019 VA examination, he reported he did not use any assistive devices during the February 2017 VA examination. The Board acknowledges that during the February 2017 VA examination the Veteran reported radiating pain affecting both legs with associated numbness, and during the September 2019 VA examination he reported gradual, worsening bilateral radicular leg pain over the past 18 months; however, both the February 2017 and September 2019 VA examiners indicated that the bilateral intermittent pain and paresthesias and/or dysesthesias were of moderate severity and the bilateral lower extremity numbness was of mild severity. The Board finds that this symptomatology was considered by the RO in assigning the current 20 percent rating and is consistent with a finding of moderate incomplete paralysis of the sciatic nerve, rather than moderately severe incomplete paralysis. Moreover, while the objective evidence shows mild sensory changes, there is no evidence of tropic changes or motor function. In addition to these findings, treatment records beginning September 25, 2016 reveal that the Veteran reported radiating pain into his right lower extremity; however, physical examination showed no edema, clubbing or cyanosis of the extremities, no significant joint damage, and distal pulses were present bilaterally; further, muscle tone, strength and coordination were normal; and sensory examination was unremarkable and showed equal and symmetrical deep tendon reflexes. See October 2016 VA treatment record. Thus, after considering the medical evidence and lay statements, the Board finds that the evidence does not more nearly approximate moderately severe incomplete paralysis so as to support the assignment of ratings in excess of 20 percent for the entire rating period on appeal. In reaching its decision, the Board considered whether the Veteran's service-connected right and left lower extremity radiculopathy manifests any associated objective neurologic abnormalities. However, the Veteran is already separately service-connected for lumbar spine degenerative disc disease, and the record does not reflect other neurologic disabilities associated with his bilateral lower extremity radiculopathy. As a final matter, the Board acknowledges that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not asserted, and the record does not reflect, that he is rendered unemployable due to his right and left lower extremity radiculopathy. As such, the Board finds that a claim of entitlement to TDIU has not been raised and no further action pursuant to Rice is necessary. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.