Citation Nr: 21029162 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-25 142 DATE: May 12, 2021 ORDER Entitlement to an initial disability rating of 40 percent, but no higher, for right lower extremity radiculopathy prior to July 15, 2015, is granted. Entitlement to a disability rating in excess of 40 percent for right lower extremity radiculopathy from July 15, 2015, is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, for purposes of entitlement to special monthly compensation (SMC), is remanded. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his right lower extremity radiculopathy was more closely approximated by moderately severe incomplete paralysis of the sciatic nerve throughout the appeal period. 2. Throughout the appeal period, the Veteran's right lower extremity radiculopathy has not manifested by severe incomplete paralysis of the sciatic nerve with marked muscular atrophy or complete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher, for right lower extremity sciatic radiculopathy prior to July 15, 2015, have been met. 38 U.S.C. § 1101, 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2020). 2. The criteria for a rating in excess of 40 percent for right lower extremity sciatic radiculopathy from July 15, 2015, have not been met. 38 U.S.C. § 1101, 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to June 1981. These matters come to the Board of Veterans' Appeals (Board) from October 2014 and July 2015 rating decisions which, in pertinent part, granted entitlement to service connection for right lower extremity radiculopathy, evaluated as noncompensable, effective August 8, 2014, and denied entitlement to TDIU. In a June 2015 rating decision, VA granted an increased 10 percent evaluation for right lower extremity radiculopathy, effective August 8, 2014. In October 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In April 2019, the Board remanded the matters for further development, to include obtaining outstanding treatment records and a VA examination to assess the severity of the Veteran's right lower extremity radiculopathy. The Board notes that it also remanded claims of entitlement to service connection for a head injury, traumatic brain injury, headaches, and right shoulder disability. These claims were granted in September 2020 and December 2020 rating decisions and are considered a full grant of the benefit sought on appeal. Therefore, those claims are no longer before the Board. In a December 2020 rating decision, VA granted an increased 20 percent evaluation for right lower extremity radiculopathy, effective August 8, 2014, and an increased 40 percent evaluation, effective July 15, 2015. As this does not represent a maximum grant of the benefit sought on appeal, the issue remains pending before the Board. Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App. 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran's benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an initial disability rating in excess of 20 percent for right lower extremity radiculopathy prior to July 15, 2015, and in excess of 40 percent thereafter. The Veteran contends that an increased rating is warranted for his right lower extremity radiculopathy. The Veteran's right lower extremity radiculopathy is evaluated at 20 percent prior to July 15, 2015, and at 40 percent thereafter, under 38 C.F.R. § 4.124a, Organic Diseases of the Central Nervous System, Diagnostic Code (DC) 8520. DC 8520 rates neurological impairment based on the degree of complete or incomplete paralysis of the sciatic nerve. Incomplete paralysis of the sciatic nerve warrants a 10 percent evaluation if mild, a 20 percent evaluation if moderate, a 40 percent evaluation if moderately severe, and a 60 percent evaluation if it is severe with marked muscular atrophy. Complete paralysis of the sciatic nerve 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 warrants a maximum 80 percent evaluation. 38 C.F.R. § 4.124a, DC 8520. DC 8521 rates neurological impairment based on the degree of complete or incomplete paralysis of the external popliteal nerve (common peroneal). Incomplete paralysis of the external popliteal nerve warrants a 10 percent evaluation if mild, a 20 percent evaluation if moderate, and a 30 percent evaluation severe. A 40 percent evaluation is warranted for complete paralysis of the external popliteal nerve manifested by foot drop and slight droop of the 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, DC 8521. DC 8522 rates neurological impairment based on the degree of complete or incomplete paralysis of the musculocutaneous nerve (superficial peroneal) and DC 8523 rates neurological impairment based on the degree of complete or incomplete paralysis of the anterior tibial nerve (deep peroneal). Incomplete paralysis of these nerves warrants a noncompensable evaluation if mild, a 10 percent evaluation if moderate, and a 20 percent evaluation severe. When there is complete paralysis of either of these nerves, a 30 percent rating is assigned. Paralysis of the superficial peroneal nerve is measured by whether eversion of the foot is weakened, and paralysis of the deep peroneal nerve is measured by whether dorsal flexion of the foot is lost. 38 C.F.R. § 4.124a, DCs 8522-8523. DC 8524 rates neurological impairment based on the degree of complete or incomplete paralysis of the internal popliteal nerve (tibial). Incomplete paralysis of the internal popliteal nerve warrants a 10 percent evaluation if mild, a 20 percent evaluation if moderate, and a 30 percent evaluation severe. A 40 percent evaluation is warranted for complete paralysis of the internal popliteal nerve manifested by loss of plantar flexion, frank adduction of the foot impossible, flexion and separation of toes abolished, no muscle in sole can move, and loss of plantar flexion in lesions of the nerve high in popliteal fossa. 38 C.F.R. § 4.124a, DC 8524. DC 8525 rates neurological impairment based on the degree of complete or incomplete paralysis of the posterior tibial nerve. Incomplete paralysis of the posterior tibial nerve warrants a 10 percent evaluation if mild, a 10 percent evaluation if moderate, and a 20 percent evaluation severe. A 30 percent evaluation is warranted for complete paralysis of the posterior tibial nerve manifested by paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired. 38 C.F.R. § 4.124a, DC 8525. DC 8526 rates neurological impairment based on the degree of complete or incomplete paralysis of the anterior crural nerve (femoral). Incomplete paralysis of the anterior crural nerve warrants a 10 percent evaluation if mild, a 20 percent evaluation if moderate, and a 30 percent evaluation severe. A 40 percent evaluation is warranted for complete paralysis of the anterior crural nerve manifested by paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, DC 8526. DCs 8527, 8528, 8529, and 8530 rate neurological impairment based on the degree of complete or incomplete paralysis of the internal saphenous, obturator, external cutaneous and ilio-inguinal nerves. A noncompensable evaluation is warranted for mild or moderate incomplete paralysis and a 10 percent evaluation is warranted for severe incomplete paralysis to complete paralysis. 38 C.F.R. § 4.124a, DCs 8527-8530. The term "incomplete paralysis" with peripheral nerve injuries 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. When involvement is wholly sensory, the rating should be for mild, or at most, moderate degree. 38 C.F.R. § 4.124a, Note preceding DC 8510. Words such as "severe," "moderate," and "mild" are not defined in the rating schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 C.F.R. §§ 4.2, 4.6. The Veterans Benefits Administration (VBA) has determined that there are 5 separate nerve branches in the lower extremities that may be separately rated. M21-1, III.iv.4.N.4.e. According to VBA, the sciatic nerve, the external popliteal nerve, the musculocutaneous nerve, the anterior tibial nerve, the internal popliteal nerve, and the posterior tibial nerve are all part of the sciatic nerve branch and affect the foot and leg sensory and motor function of the buttock, leg, knee, muscles below knee, lower leg, fibula, foot, muscles of the sole of the feet, plantar flexion, and toes. Assigning separate ratings from within these nerve branches is not warranted as it would constitute impermissible pyramiding. M21-1, III.iv.4.N.4.f. In Overton v. Wilkie, 30 Vet. App. 257, 264 (2018), the Court of Appeals for Veterans Claims held that the Board is required to discuss any relevant provisions contained in the M21 as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21 provision as a factor to support its decision. The Board notes that there is no binding authority on how to apply separate ratings for the various peripheral nerves in the lower extremities. In other words, there is no instruction on when different nerves can be assigned separate ratings without running afoul of the rule against pyramiding. This rule states that the evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. 38 C.F.R. § 4.14. When determining whether separate ratings are applicable, the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In this regard, the Board finds the M21 particularly insightful and instructive when determining whether separate ratings are warranted and for which nerves. The M21 shows that the lower extremities have five nerve branches, and each nerve branch affects different muscles/joints. Thus, to the extent a veteran experiences radiculopathy within the same nerve branch, the Board must be careful not to grant separate ratings where, although multiple nerves are involved, the same symptoms occur. Turning to the evidence of record, VA treatment records reflect that in May, July, and August 2014, the Veteran complained of chronic low back pain with pain radiating bilaterally to his lower extremities. The Veteran underwent epidural steroid injections in May and August 2014. An October 2014 VA examination report shows that the Veteran reported daily pain, weakness, and numbness and reflects a diagnosis of bilateral lower extremity radiculopathy. Upon examination, right lower extremity muscle strength was reduced to 4/5 in hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. The Veteran did not have muscle atrophy. Right lower extremity reflexes were hypoactive at the knee and ankle. A sensory examination was normal but the straight leg raising test was positive. Despite diagnosing the Veteran with bilateral lower extremity radiculopathy, the examiner indicated that there was no evidence of right lower extremity radiculopathy upon examination. In his February 2015 VA Form 21-0958 (Notice of Disagreement), the Veteran asserted a higher rating should be granted for numbness on his right side due to right lower extremity radiculopathy. VA treatment records show that in April 2015, the Veteran underwent a bilateral L4-5 transforaminal epidural steroid injection to treat his lumbar and radicular pain. A July 2015 VA examination report reflects the Veteran reported daily severe low back pain that radiated into both his legs. Upon examination, right lower extremity muscle strength was reduced to 4/5 in knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. The Veteran did not have muscle atrophy. Right lower extremity reflexes were normal at the knee and ankle. A sensory examination revealed decreased sensation in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes and the straight leg raising test was positive. The examiner found severe constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness in the right lower extremity and concluded the Veteran had severe radiculopathy in the right lower extremity involving the sciatic nerve root. VA treatment records show that in February 2016, the Veteran reported four months of significant improvement after his last injection in April 2015 and opted to undergo another injection. An October 2019 VA examination report reflects a diagnosis of bilateral lower extremity radiculopathy. Upon examination, the Veteran reported moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in his right lower extremity. Right lower extremity muscle strength was reduced to 4/5 in ankle plantar flexion and ankle dorsiflexion. The Veteran did not have muscle atrophy. Right lower extremity reflexes were hypoactive in the ankle. A sensory examination revealed decreased sensation in the lower leg/ankle and foot/toes. The examiner indicated there was mild incomplete paralysis of the right lower sciatic, external popliteal, musculocutaneous, anterior tibial, internal popliteal, and posterior tibial nerves, but the anterior crucial, internal saphenous, obturator, external cutaneous, and ilio-inguinal nerves were normal. A November 2020 VA examination report reflects the Veteran reported right lower extremity numbness, tingling, pain, and weakness. Upon examination, right lower extremity muscle strength was reduced to 4/5 in hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. The Veteran did not have muscle atrophy. Right lower extremity reflexes were hypoactive at the knee and absent at the ankle. A sensory examination revealed decreased sensation in the lower leg/ankle and foot/toes. The straight leg raising test could not be completed. The examiner found moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the right lower extremity and concluded the Veteran had moderate radiculopathy in the right lower extremity involving the sciatic nerve. After a thorough review of the evidence of record, the Board finds that an initial rating of 40 percent, but no higher, is warranted prior to July 15, 2015, and throughout the appeal period. The October 2014 VA examination report shows reduced muscle strength, hypoactive reflexes, and positive straight leg raising test in the right lower extremity. Although the examiner indicated there were no objective findings of right lower extremity radiculopathy upon examination, the Board notes that the Veteran underwent an epidural steroid injection approximately two months earlier. A subsequent VA examination in July 2015 showed reduced muscle strength, decreased sensation, positive straight leg raising test, and the examiner found severe radiculopathy in the right lower extremity involving the sciatic nerve. It is from this July 2015 examination that the Veteran was already in receipt of a 40 percent rating for moderately severe right lower extremity radiculopathy. It is not clear from the record the ameliorative effect the August 2014 epidural steroid injection may have had on the severity of the Veteran's right lower extremity radiculopathy during the October 2014 VA examination. The Veteran reported daily pain, weakness, and numbness and despite the epidural steroid injection, the examination still showed reduced muscle strength, hypoactive reflexes, and positive straight leg raising test, findings similar to those in the July 2015 VA examination of reduced muscle strength, decreased sensation, and positive straight leg raising test. Thus, affording the Veteran the benefit of the doubt, the Board finds that a 40 percent rating for moderately severe right lower extremity radiculopathy of the sciatic nerve is warranted for prior to July 15, 2015 and throughout the appeal period. However, a rating in excess of 40 percent is not warranted at any point during the appeal period. Specifically, at no point during the appeal period does the evidence show that the Veteran's right lower extremity radiculopathy manifested with muscle atrophy, marked or otherwise, a finding necessary for a higher 60 percent rating. Further, the evidence does not show complete paralysis of the right lower extremity, a finding necessary for the maximum 80 percent rating. Thus, a higher rating is not warranted under DC 8520. The Board has considered whether separate or higher ratings are warranted under any other diagnostic code. The Board acknowledges that the October 2019 VA examination report showed mild incomplete paralysis of the right lower sciatic, external popliteal, musculocutaneous, anterior tibial, internal popliteal, and posterior tibial nerves. The Board finds, however, that separate ratings are not warranted for each of these nerves. The sciatic, external popliteal, musculocutaneous, anterior tibial, internal popliteal, and posterior tibial nerves are part of the sciatic nerve branch and assigning separate ratings from within the sciatic nerve branch would constitute impermissible pyramiding. Even if the Board were to consider assigning separate ratings for mild incomplete paralysis of the right lower sciatic, external popliteal, musculocutaneous, anterior tibial, internal popliteal, and posterior tibial nerves, the Veteran's combined rating would be less than the 40 percent he is currently assigned based on moderately severe incomplete paralysis of the sciatic nerve branch. Accordingly, the Board finds that a rating of 40 percent, but no higher, is warranted for right lower extremity radiculopathy prior to July 15, 2015 and throughout the appeal period. However, the Board finds that a rating in excess of 40 percent is not warranted for right lower extremity radiculopathy at any point during the appeal period. 38 C.F.R. § 4.124a, DC 8520. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable, other than the extent of allowing an increase in the rating of the Veteran's right lower extremity radiculopathy from 20 percent to 40 percent prior to July 15, 2015, because the preponderance of the evidence is against a rating in excess of 40 percent. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a, 4.124a, 4.130. REASONS FOR REMAND Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, for purposes of entitlement to special monthly compensation (SMC), is remanded. As discussed above, the Board remanded entitlement to TDIU in April 2019. In a December 2020 rating decision, VA found that the issue of entitlement to TDIU was moot because the Veteran was in receipt of a combined 100 percent schedular rating. VA did not include the issue of entitlement to TDIU in the December 2020 supplemental statement of the case (SSOC). However, a TDIU claim does not automatically become moot when a combined 100 percent schedular rating is assigned based on multiple service-connected disabilities because a separate award of TDIU predicated on a single disability could form the basis for an award of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). SMC is warranted where veteran has a totally rated service-connected disability, as well as "additional service-connected disabilities independently ratable at 60 percent or more." See Bradley v. Peake, 22 Vet. App. 280, 293 (2008) (holding that a grant of TDIU based on a single disability constitutes a totally rated service-connected disability for purposes of section 1114(s)). As the issue of entitlement to TDIU is not moot for purposes of SMC, and in light of the Board's grant of an increased rating for the Veteran's right lower extremity radiculopathy, the Board finds that a remand is warranted for the issuance of an SSOC on the issue of entitlement to TDIU for purposes of SMC. The matter is REMANDED for the following actions: 1. Complete any development that may be indicated and readjudicate the claim of entitlement to TDIU for purposes of entitlement to special monthly compensation. 2. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.