Citation Nr: 21028325 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 14-27 793 DATE: May 11, 2021 ORDER A disability evaluation of 20 percent for right lower extremity radiculopathy, effective July 22, 2016 and no earlier, is granted. A disability evaluation in excess of 20 percent for right lower extremity radiculopathy since July 22, 2016 is denied. A disability evaluation in excess of 20 percent for left lower extremity sciatica is denied. FINDINGS OF FACT 1. As of July 22, 2016, the Veteran's right lower extremity radiculopathy manifested as moderate incomplete paralysis of the sciatic nerve. 2. Since July 22, 2016, the Veteran's right lower extremity radiculopathy has not manifested as moderately severe incomplete paralysis of the sciatic nerve. 3. During the pendency of the appeal, the Veteran's left lower extremity sciatica has not manifested as moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. As of July 22, 2016, the criteria for a 20 percent disability rating for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. Since July 22, 2016, the criteria for a disability rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. During the pendency of the appeal, the criteria for a disability rating in excess of 20 percent for left lower extremity sciatica have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Army from August 1998 to April 2007. These claims appear before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran's claims have a lengthy procedural history. Most recently, in February 2021, the Board remanded the Veteran's claims to the RO to obtain outstanding VA treatment records. VA requested these records, and they were associated with the claims file in March 2021. Thus, the Board finds that there has been substantial compliance with its February 2021 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where there was substanial compliance with the Board's remand instructions). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran's right lower extremity radiculopathy is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. His left lower extremity sciatica is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8620. Under Diagnostic Code 8520, VA rates the Veteran's disability on paralysis of the sciatic nerve. A 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve or where the foot dangles and drops, no active movement is possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. The words "moderate" and "severe" are not defined in 38 C.F.R. §§ 4.120-4.124 a. In applying the schedular criteria for rating peripheral nerve disabilities, the term "incomplete paralysis" 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. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under Diagnostic Code 8620, VA rates the Veteran's left lower extremity sciatica as neuritis. However, the rating criteria are the same as Diagnostic Code 8520. 1. Entitlement to an evaluation of 20 percent disabling for right lower extremity radiculopathy effective July 22, 2016 2. Entitlement to an evaluation in excess of 20 percent since July 22, 2016 3. Entitlement to an evaluation in excess of 20 percent disabling for left lower extremity sciatica The Veteran contends that he is entitled to a rating in excess of 10 percent for right lower extremity radiculopathy for the entirety of the appeal period, and in excess of 20 percent for left lower extremity sciatica. The Board agrees, to the extent that the evidence supports a 20 percent disability rating effective July 22, 2016. However, the preponderance of the evidence is against granting the Veteran's claim of entitlement to a disability rating in excess of 20 percent for either right lower extremity radiculopathy and left lower extremity sciatica at any point during the appeal. The Veteran has been afforded three VA examinations. First, he underwent VA examination in October 2012. At that time, he reported pain radiating from his lower back to his right knee and down to his left foot. He reported no weakness nor numbness. Upon physical examination, the examiner noted mild constant pain in the right lower extremity and moderate constant pain in the left lower extremity with no other signs or symptoms of radiculopathy. The examiner indicated that the Veteran had mild radiculopathy of the right sciatic nerve and moderate radiculopathy of the left sciatic nerve. At a July 2016 VA examination, the Veteran reported bilateral pain radiating from his lower back. Specifically, he reported that the pain was constant; however, he did have sharp pain when he bent over. Upon physical examination, the examiner found that the Veteran had moderate constant and intermittent pain in the right lower extremity and moderate constant pain, intermittent pain, and numbness in the left lower extremity. Further, the Veteran had mild paresthesias and numbness of the right lower extremity but no other signs or symptoms of radiculopathy. The examiner indicated the Veteran had moderate bilateral lower extremity radiculopathy. Finally, the Veteran underwent VA examination in June 2020. At that time, the Veteran reported concerns of muscle atrophy and moderate to severe radiculopathy, including parasthesia and numbness. Upon physical examination, the examiner found moderate constant and intermittent pain, parasthesia, and numbness of the right lower extremity and found the Veteran experienced moderate constant pain, parasthesia, and numbness in the left lower extremity. The examiner found that bilateral ankle plantar flexion and ankle dorsiflexion had active movement against some resistance. His bilateral ankles had hypoactive deep tendon reflexes, and sensation testing for light touch was decreased in the lower leg/ankle and foot/ toes. The examiner indicated the Veteran had moderate bilateral incomplete paralysis of the sciatic nerve. In a separate opinion, the June 2020 examiner noted the Veteran's bilateral lower extremity nerve impairment was moderate, and, while his muscles appear somewhat smaller, they are equal in nature. The examiner noted the Veteran has incomplete paralysis with mild muscle atrophy. The Veteran's VA and private treatment records show the Veteran has had multiple back surgeries. Since 2010, the records show the Veteran has sought continuous treatment for his chronic lower back pain and bilateral lower extremity radiculopathy. At points, the Veteran has described his pain as moderate to severe, but the Veteran's treatment records continue to show he has moderate symptoms of radiculopathy. As noted above, a 20 percent rating is warranted for moderate radiculopathy and a 40 percent rating is warranted for moderately severe radiculopathy. The Veteran is currently rated 20 percent disabled for his right lower extremity radiculopathy as of June 8, 2018; however, the Board finds that the preponderance of the evidence shows that as of July 22, 2016, a 20 percent rating was warranted. During the VA examination in July 2016, the Veteran's symptomatology was characterized as moderate in nature, which more closely approximates a 20 percent disability rating. The Board finds, based on the evidence of record to include multiple VA examination reports and VA and private treatment records, that at no point does the Veteran's right or left lower extremity symptomatology more nearly approximate moderately severe incomplete paralysis of the sciatic nerve, which would warrant a rating in excess of 20 percent. The evidence consistently shows that the Veteran's symptomatology was, at worst, moderate in nature. The Board acknowledges that the Veteran has reported that his symptoms have progressively worsened since 2012; however, the Veteran's medical records show that the Veteran's treatment has remained constant for his right lower extremity radiculopathy. The Board has considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's radiculopathy; however, the Board finds that his symptomatology is stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative has raised any other issues nor have any other issues been reasonably raised by the record with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, entitlement to a rating of 20 percent for right lower extremity radiculopathy is warranted, effective July 22, 2016. A rating in excess of 20 percent for right lower extremity radiculopathy since July 22, 2016 is not warranted. Finally, a rating in excess of 20 percent for left lower extremity sciatica is not warranted. In reaching its conclusions, the Board acknowledges the Veteran's belief that his radiculopathy is more severe than as reflected by the currently assigned ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule and, while the Board recognizes that the Veteran is competent to provide evidence regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of his disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such disabilities. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, to the extent that the increased rating claims have been denied herein, the preponderance of the evidence is against the Veteran's claims. Consequently, that doctrine is not applicable in the instant appeal, and those claims must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. N. Fournier, 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.