Citation Nr: 21029995 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 09-48 654 DATE: May 17, 2021 ORDER Entitlement to a rating in excess of 20 percent for right lower extremity sciatic radiculopathy is denied. Entitlement to a rating in excess of 40 percent for left lower extremity sciatic radiculopathy is denied. Entitlement to special monthly compensation (SMC) based on the loss of use of the left foot is denied. FINDINGS OF FACT 1. The Veteran's right lower extremity radiculopathy has not been productive of moderately severe incomplete paralysis of the sciatic nerve. 2. The Veteran's left lower extremity radiculopathy has not been productive of severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. 3. The weight of the evidence does not support the conclusion that it is as likely as not that the Veteran would have been equally well served by amputation of his left foot and the use of a suitable prosthetic appliance. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right lower extremity sciatic radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 3.400, 4.124a. Diagnostic Code (DC) 8520. 2. The criteria for a rating in excess of 40 percent for left lower extremity sciatic radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 3.400, 4.124a. DC 8520. 3. The criteria for SMC based on the loss of use of the left foot have not been met. 38 U.S.C. § 1114(k); 38 C.F.R. §§ 3.350 (a)(2), 4.63. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1981 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2012. This case was previously remanded by the Board in May 2016, January 2019 and June 2020 for additional development. In the January 2019 Board decision, the Board granted entitlement to a 20 percent rating, but no more, for right lower extremity sciatic radiculopathy throughout the appeal, and granted entitlement to a 40 percent rating, but no more, for left lower extremity sciatic radiculopathy throughout the appeal. The appeal periods for the Board begins the effective date of service connection for right and left lower extremity sciatic radiculopathy; for the right sciatic radiculopathy the appeal period begins May 14, 2012, and for the left sciatic radiculopathy the appeal period begins August 5, 2008. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to the March 2020 joint motion for partial remand (JMR), the Court vacated the Board's denial of ratings in excess of 20 percent for right lower extremity sciatic radiculopathy and 40 percent for left lower extremity sciatic radiculopathy and remand the matters for compliance with the terms of the JMR. The March 2020 JMR specifically stated that the Veteran does not contest the Board's denials of a compensable rating for a low back post-operative scar and a rating in excess of 40 percent for a low back disability. Moreover, the JMR also stated that it did not disturb the grants of a 40 percent rating for a low back disability, an initial 20 percent rating for right lower extremity sciatic radiculopathy, and an initial 40 percent rating for left lower extremity sciatic radiculopathy. In June 2020, the Board remanded the claims for increased ratings for right lower extremity and left lower extremity radiculopathy to afford the Veteran a new VA examination that produced an opinion on the severity of Veteran's symptoms without medication and whether Veteran is entitled to a higher disability rating when the ameliorating effects of medication are not considered. The parties also agreed that the Board must address whether the Veteran is entitled to a SMC due to loss of use of the left foot. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. 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. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). 1. Entitlement to a rating in excess of 20 percent for right lower extremity sciatic radiculopathy 2. Entitlement to a rating in excess of 40 percent for left lower extremity sciatic radiculopathy The Veteran contends that he is entitled to an increased rating for his left lower extremity radiculopathy. Service connection is in effect for left lower extremity radiculopathy at 20 percent disabling, pursuant to DC 8520. Sciatic nerve neurological manifestations are rated under Diagnostic Code 8520, 8620, or 8720 as, respectively, paralysis, neuritis or neuralgia of the sciatic nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that 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. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, 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 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id. at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." The Veteran was afforded a post-remand VA examination for his peripheral nerves condition in January 2021. The Veteran was noted to have mild right and left lower extremity intermittent pain, moderate right and left lower extremity paresthesias and/or dysesthesias, and moderate right and left lower extremity numbness. Muscle strength upon testing was normal. Veteran did not have muscle atrophy. Sensation testing for light touch revealed decreased sensation in the upper anterior thighs and in the feet. Veteran has an unsteady gait due to his bilateral lower extremity radiculopathy. The right lower extremity was diagnosed as moderate incomplete paralysis and the left lower extremity was also diagnosed as moderate incomplete paralysis. There was no additional functional impairment of an extremity noted such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The VA examiner opined that the severity of the Veteran's bilateral lower extremity neurological impairment absent medication would be moderate. See January 2021 C&P Exam. Here, the Board finds that a higher rating in excess of 20 percent for Veteran's right lower extremity radiculopathy and a rating in excess of 40 percent for Veteran's left lower extremity radiculopathy is not warranted as the medical evidence from the January 2021 VA examination shows that the manifestations of the Veteran's radiculopathy have been wholly sensory, and "moderate" in nature at best. Therefore, the left and right lower extremity radiculopathy have resulted in no more than moderate incomplete paralysis of the sciatic nerve. Thus, a rating in excess of 20 percent for right lower extremity radiculopathy and a rating in excess of 40 percent for left lower extremity radiculopathy is not warranted under DC 8520. 3. Entitlement to Special Monthly Compensation (SMC) based on the loss of use of the left foot The Veteran seeks entitlement to special monthly compensation based on the Veteran's loss of use of his left foot due to his moderate left lower extremity radiculopathy. See 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350 (a)(2). The loss of use of the foot is held to exist when no effective function (including balance, propulsion, etc.) remains other than that which would be equally well served by an amputation stump at the site of election below the knee with the use of a prosthesis. 38 C.F.R. §§ 3.350 (a)(2), 4.63. Examples constituting loss of use of a foot include extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity or shortening of the lower extremity of 3 1/2 inches or more. Id. For purposes of special monthly compensation, loss of use must be caused by service-connected disabilities. Also considered as loss of use of a foot under section 3.350(a)(2) is complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, complete paralysis of the sciatic nerve also encompasses foot dangles and drop, no active movement possible of muscles below the knee, while flexion of knee is weakened or (very rarely) lost. The Veteran's claim is based on his difficulty with ambulating, conjoined with constant left leg and foot pain. In the April 2017 VA examination, the Veteran reported functional loss in his left foot due to his lower left extremity radiculopathy in addition to his reliance on a walking cane and inability to hold anything but a sedentary job due to his symptoms. Although there is no question that the Veteran has significant problems with ambulation due to his service-connected bilateral lower extremity radiculopathies, as evidenced by the medical evidence of record, the question the Board must address is whether the service-connected disabilities are of such significance to cause "loss of use," a term that conveys a specific meaning for VA purposes. To that end, the medical evidence of record fails to show that the Veteran lost the use of his left foot due to any of his service-connected disabilities. The Veteran's medical note from March 2015 indicates that his heel toe raises intact and neurological findings showed intact sensations. In the April 2017 VA back examination, the Veteran reported lower extremity symptoms and weakness and left foot/toes sensation to light touch was marked as decreased. Veteran had moderate left lower extremity radiculopathy with no other neurologic abnormalities related to the back condition. In the January 2021 VA peripheral nerves examination, the VA examiner opined that Veteran's left lower extremity impairment is analogous to loss of use of his left foot. The examination results showed decreased sensation for light touch in the left foot and requires use of a cane. However, due to Veteran's peripheral nerves condition, the preponderance of the evidence does not show functional impairment in the left foot such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. See January 2021 C&P Examination Report. The Board appreciates Veteran's assertion that the Veteran had "lost the use" of his left foot and has considered his reported symptomatology. The Veteran is competent to report symptomatology, but the determination of whether "loss of use" exists is a legal determination. Here, the lay assertions fail to demonstrate that the Veteran was unable to ambulate with his left foot. As such, the Board finds that the preponderance of the evidence demonstrates that the level of impairment does not rise to the level of "loss of use," and thus does not warrant special monthly compensation based on his service-connected left lower extremity radiculopathy, or any other service-connected disability. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.