Citation Nr: 21029007 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-13 302 DATE: May 12, 2021 ORDER A 40 percent rating, but no higher, for right lower extremity radiculopathy is granted. A 20 percent rating, but no higher, for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. The Veteran's radiculopathy of the right lower more nearly approximates "moderately severe" incomplete paralysis of the sciatic nerve; severe impairment with marked muscle atrophy is not shown. 2. The Veteran's radiculopathy of the left lower more nearly approximates "moderate" incomplete paralysis of the sciatic nerve; moderately severe impairment is not shown. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no higher, for radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2020). 2. The criteria for a rating of 20 percent, but no higher, for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision/rating of the Department of Veterans' Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In August 2020, the Board remanded the claims on appeal and additionally remanded the claim for entitlement to a total disability rating based upon individual unemployability (TDIU). Thereafter, in a January 2021 rating decision, the RO granted entitlement to a TDIU, effective November 29, 2012, i.e., throughout the entire rating period on appeal. Accordingly, the TDIU issue is no longer before the Board for consideration. Lower Extremity Radiculopathy DisabilityLaws and Analysis The Veteran is currently in receipt of a 20 percent rating for the right lower extremity radiculopathy under Diagnostic Code 8520 for incomplete paralysis of the sciatic nerve. He is also in receipt of a 10 percent rating for left lower extremity radiculopathy under the same diagnostic code. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The Veteran was afforded a VA spine examination in September 2013. At that time, the Veteran indicated that his back pain and sciatica pain had become more severe since his last examination in 2010. The Veteran also reported that when bending, twisting, sitting, standing, or walking for prolonged periods of time, his right leg pain increased in severity. The Veteran had guarding and/or muscle spasms, but these did not result in an abnormal gait. Muscle strength was only slightly deceased in the knees and ankles. The Veteran did not have muscle atrophy in either extremity. A sensory examination was normal, except in the right foot, which was noted to be "absent." Straight leg raise test was positive in both lower extremities. The examiner indicated that the Veteran had "moderate" right lower extremity radiculopathy involving the sciatic nerve roots and "mild" radiculopathy in the left lower extremity. The evidence also includes an April 2016 private treatment record from Dr. G. O. During the evaluation, the Veteran reported pain in his legs with standing, with more severe symptoms in the right leg. The Veteran also reported stumbling and limping due to his right leg giving way. Upon examination, the Veteran had "patchy" sensory changes into his legs and feet and reflexes were diminished. The Veteran was noted to have difficulty walking on his toes and heels. Dr. G. O. indicated that the Veteran had "significant" back and radicular pain, with the right lower extremity being more severe. The Veteran submitted a June 2020 disability benefits questionnaire (DBQ) completed by the Veteran's private physician, Dr. G.O. At that time, it was noted that the Veteran had lower extremity muscle atrophy with diminished light touch in the lower extremities and limited straight leg test due to bilateral lower extremity pain. Accompanying private treatment notes dated in June 2020 from Dr. G. O. indicate that the Veteran continued to have pain his lumbar spine and lower extremities "constantly." Dr. G. O. indicated that the pain was worse in the right lower extremity. Symptoms were aggravated by standing, sitting, bending, and walking long distances. Associated symptoms included leg pain, tingling, and weakness. The Veteran denied any bowel incontinence or numbness. It was further noted that the Veteran had some bladder incontinence, but Dr. G. O. indicated that it was as result of an enlarged prostate and medication (i. e., Lasix). Despite seeking various kinds of treatment (e. g., physical therapy, acupuncture, narcotics), the Veteran had only mild relief of his symptoms. Dr. G. O. specifically indicated that the Veteran had worsening symptoms since 2016, to include restricted range of motion of the spine as well as a positive straight leg raise test. The Veteran was noted to require the use of narcotics to help perform activities of daily living. Pursuant to the Board's remand directives, the Veteran was afforded a VA peripheral nerves examination in January 2021. During the evaluation, the Veteran was found to have "moderate" intermittent pain in the right lower extremity, and "mild" intermittent pain in the left lower extremity. Muscle strength testing was normal in both lower extremities and the Veteran did not have muscle atrophy. His reflex examination was also normal. A sensory examination revealed hypersensitivity to the right posterior calf with no reported decreased sensitivity or numbness. The examiner diagnosed the Veteran with "moderate" right lower extremity radiculopathy involving the sciatic nerve roots and "mild" radiculopathy in the left lower extremity. Statements from the Veteran throughout the rating period on appeal show that his back and radiculopathy disabilities have severely limited his ability to stand, walk, or sit for prolonged periods of time. See e. g., March 2015 statement. He has indicated that these disabilities have prevented him from working. The Veteran has been awarded a TDIU solely based on his spine and radiculopathy disabilities for the entire rating period on appeal. Upon review of the lay and medical evidence of record, the Board finds that a rating of 40 percent, but no higher, for the Veteran's service-connected right lower extremity radiculopathy is warranted for the entire appeal period. As noted above, DC 8520 provides for a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve and the Veteran's symptoms are commensurate with a 40 percent rating for a moderate severe disability. As discussed above, the Veteran has continuously complained of more severe symptoms in the right leg resulting in slight muscle atrophy of the thigh, episodes of stumbling and limping due to his right leg giving way, constant pain, "absent" sensory findings in the right foot, diminished light touch in the lower extremities, positive straight leg tests, and increased pain during prolonged walking, standing, and sitting. The Veteran was also noted to have difficulty walking on his toes and heels. As such, the Board finds that a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve root in the right lower extremity is warranted. The Board next finds that, the Veteran has not demonstrated severe incomplete paralysis "with marked muscle atrophy" in the right lower extremity, as required for an even higher 60 percent rating. Although the Veteran was found by Dr. G. O. to have evidence of muscle atrophy in the thighs (36cm) and in the calves (34cm), VA examinations of record have indicated that the Veteran did not have muscle atrophy. This demonstrates to the Board that, if present, the Veteran's muscle atrophy is slight and does not more nearly approximate "marked" atrophy as required by the 60 percent rating criteria. Accordingly, a 40 percent rating, but no higher, is warranted for the entire rating period on appeal for the Veteran's right lower extremity radiculopathy. As it pertains to the left lower extremity, the Board finds that the Veteran's radiculopathy has been manifested by, at most, "moderate" incomplete paralysis of the sciatic nerve. The evidence clearly demonstrates constant and continued symptoms of pain, weakness, and tingling in the left leg, with increased symptoms with prolonged standing, walking, or sitting. The Veteran was also found to have difficulty walking on his toes and heels. However, the lay and medical evidence clearly demonstrates that the Veteran's left lower extremity symptoms have been less severe than his right lower extremity. See e. g., April 2016 private treatment record from Dr. G. O. For these reasons, the Board finds that 20 percent rating, but no higher, for left lower extremity radiculopathy is warranted. As noted above, the Veteran is already in receipt of a TDIU for the entire rating period on appeal. Neither the Veteran nor his 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, 371 (2017). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.