Citation Nr: 21028692 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 10-04 175A DATE: May 11, 2021 ORDER From February 2, 2012, forward, a disability rating of 20 percent, but no higher, for right lower extremity (RLE) radiculopathy is granted, subject to the laws and regulations governing payment of monetary benefits. FINDING OF FACT From February 2, 2012, forward, the RLE radiculopathy had manifested in no more than moderate incomplete paralysis of the external popliteal nerve. CONCLUSION OF LAW The criteria for entitlement to a disability rating of 20 percent, but no higher, for RLE radiculopathy from February 2, 2012 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.123, 4.124a, Diagnostic Code (DC) 8799-8721 (2020) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1984 to May 1987, from August 1987 to September 1994, and from October 2006 to February 2009. He also served in the Alabama Army National Guard. Unfortunately, he, died in May 2013. The appellant is his surviving spouse and has been properly substituted as claimant in the claim addressed herein. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, in a September 2019 decision, the Board, in pertinent part, denied entitlement to a rating in excess of 10 percent for RLE radiculopathy from February 2, 2012, forward. The Veteran appealed this denied claim. In December 2020, the United States Court of Appeals for Veterans Claims (Court) granted a December 2020 Amended Joint Motion for Partial Remand (JMPR) by counsel for the Veteran and VA, vacated the Board's September 2019 decision as to the issue of entitlement to a disability rating in excess of 10 percent for RLE radiculopathy from February 2, 2012, and remanded this matter to the Board for action consistent with the JMPR. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to a disability rating of 20 percent for RLE radiculopathy from February 2, 2012 From February 2, 2012, forward, the Veteran was in receipt of an initial 10 percent rating for the RLE radiculopathy under DCs 8799-8721. 38 C.F.R. § 4.124a. The appellant generally contends that an initial rating in excess of 10 percent is warranted for the entire period on appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. According to the policy in the Rating Schedule, when a disability is not specifically listed, the diagnostic code will be "built up," meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be "99." 38 C.F.R. § 4.27. For example, DC 8799 is used to identify unlisted conditions of the peripheral nerves. The Veteran's neurologic impairment of the left and right lower extremities is rated under DC 8721, which provides ratings for neuralgia of the external popliteal nerve. Neuralgia is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis of the external popliteal nerve. See 38 C.F.R. §§ 4.124 and 4.124a, DC 8521. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. Under DC 8521, mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the external popliteal nerve, involving 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, is rated 40 percent disabling. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id.; see Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). The rating schedule does not define the terms 'mild," "moderate," or "severe," as used in this diagnostic code to describe the degree of incomplete paralysis of the foot. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" 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 regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the peripheral nerves, the term 'incomplete paralysis' indicates a degree of lost or impaired function 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. 38 C.F.R. § 4.124a. After review of the evidence of record, both lay and medical, the Board finds that the weight of the evidence supports a finding that the Veteran's RLE radiculopathy manifested in moderate incomplete paralysis of the external popliteal nerve, and therefore warrants a 20 percent rating for the initial rating period from February 2, 2012, forward. The February 2012 VA examination report indicated that the RLE radiculopathy manifested in mild constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness involving the sciatic nerve. In addition, the Veteran's reflexes were hypoactive in the RLE. However, sensory examination and muscle strength testing were both normal in the RLE, and there was no muscle atrophy. The VA examiner indicated that the Veteran had mild radiculopathy of the RLE. In addition, a November 2012 VA treatment record indicated that the Veteran complained of increased low back pain with radiating symptoms, with findings of full muscle strength, normal sensory responses, and normal deep tendon reflex responses in the RLE. Based on this evidence, the Board concludes that the evidence as a whole more nearly approximates a disability picture manifested by moderate incomplete paralysis, rather than severe incomplete paralysis. For these reasons, and resolving all reasonable doubt in the Veteran's favor, a rating of 20 percent, but no higher, for RLE radiculopathy is warranted from February 2, 2012, forward. Finally, neither the appellant nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, 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.