Citation Nr: 21030066 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 14-33 342 DATE: May 17, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy due to sciatic nerve effective February 19, 2013, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the entire period on appeal, the Veteran's service connected right lower extremity radiculopathy due to sciatic nerve manifested by mild incomplete paralysis based on pain and sensory disturbance but did not include impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy due to sciatic nerve effective February 19, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1976 to November 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in San Diego, California. Preliminary matters By way of background, the RO granted service connection for right lower extremity radiculopathy with a noncompensable rating effective February 19, 2013. The Veteran timely appealed. During the course of the appeal, the RO issued multiple rating decisions, the most recent of which was in April 2020 granting a 10 percent disability rating effective February 19, 2013, for right lower extremity radiculopathy due to the sciatic nerve. The Board previously remanded this claim in June 2018 and July 2020. As will be discussed in more detail below, the Board finds substantial compliance with the July 2020 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes during the pendency of this appeal, the Veteran filed a subsequent increased rating claim for the right lower extremity in July 2015. Following development of the claim, the RO issued a November 2015 rating decision separately awarding service connection for radiculopathy due to right femoral nerve at 10 percent disabling effective July 21, 2015. The Veteran did not appeal this rating. Additionally, the Board did not take jurisdiction of this rating as part of either the June 2018 or July 2020 decisions. Thus, the Board finds the Veteran was on notice that radiculopathy due to right femoral nerve was not on appeal. While the Veteran's representative presented contentions regarding the radiculopathy due to right femoral nerve in the March 2021 Appellant's Brief, the Board finds this issue is not properly before the Board. See 38 C.F.R. § 3.155 (discussing that claims and appeals must be on a "form prescribed by the Secretary."). 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). Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy due to sciatic nerve effective February 19, 2013, is denied. The Veteran contends his right lower extremity radiculopathy due to the sciatic nerve should be assigned a higher disability rating due to his symptoms. The Board finds an initial disability rating in excess of 10 percent is not warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 C.F.R. § 4.1. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). At the outset, the Board notes, the Veteran filed a claim for benefits in February 2013. The Veteran timely appealed the initial April 2014 rating decision stemming from said claim. Thus, the Board will consider the period on appeal beginning February 2013, the date of the Veteran's claim for benefits. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As previously mentioned, the Veteran's right lower extremity radiculopathy due to sciatic nerve is rated under DC 8520 for incomplete or complete paralysis of the sciatic nerve. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. Mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Turning to the relevant evidence of record, in 2013, the Veteran complained of pain radiating into his legs with his low back pain. See October and November 2013 treatment records. He denied experiencing lower extremity numbness, tingling, or weakness. See October and November 2013 treatment records. In February 2014, the Veteran complained of lower back pain radiating down the bilateral lower extremities. See February 2014 VA treatment records. Later in 2014, the Veteran complained of lower back pain radiating only to the left calf or left leg. See May 2014 VA treatment records; see also June, July, August, and September 2014 treatment records. In July 2014, the Veteran described only radiating symptoms to the left calf with numbness, tingling, and weakness in the left leg only. See July 2014 government treatment records. September 2014 treatment records reflect chronic lower back pain with "intermittent" bilateral lower extremity radiculopathy. See September 2014 VA treatment records. Treatment records from October 2014 note chronic radicular lower back pain. See October 2014 VA treatment records. In 2015, treatment records reflect complaints of lower back pain causing intermittent, sharp, shooting pain radiating down bilateral lower extremities with prolonged sitting requiring repositioning. See March 2015 non-government treatment records. The Veteran continued to report bilateral lower extremity radiculopathy with his chronic lower back pain. See June 2015 VA treatment records. The Veteran submitted a statement wherein he reported "severe chronic lower back pain with both severe chronic extremities radiculopathy." See March 2015 Statement in Support of Claim. In 2016, the Veteran complained of chronic lower back pain radiating to bilateral lower extremities. See January and May 2016 VA treatment records. The Veteran stated that his radicular symptoms were greater on the left lower extremity than the right. See January 2016 VA treatment records. The Veteran received multiple steroid injections related to his radiculopathy. See March and September 2016 VA treatment records. Treatment records in 2017 reflect continued complaints of experiencing chronic lower back pain with bilateral lower extremity radiculopathy. See July 2017 VA treatment records. In 2018, the Veteran continued to complain of chronic lower back pain but declined experiencing muscle weakness/soreness, numbness, or tingling. See August 2018 VA treatment records. He complained of lower back pain radiating down bilateral lower extremities to the feet. See November 2018 VA treatment records. 2019 and 2020 treatment records continue to reflect treatment for radiculopathy. See February 2019 and September 2020 VA treatment records. In September 2020, the Veteran reported bilateral leg pain, numbness, and weakness. See September 2020 treatment records. Throughout 2020, the Veteran reported radiating lower back pain down bilateral lower extremities to the feet. See July, September, and December 2020 VA treatment records. The Veteran has been afforded multiple VA examinations to determine the severity of his right lower extremity radiculopathy including both peripheral nerves conditions disability benefit questionnaires (DBQ) and back (thoracolumbar spine) conditions DBQs. In February 2014, the Veteran was afforded a back (thoracolumbar spine) conditions DBQ during which he reported non-radiating lower back pain. See February 2014 VA examination. He declined experiencing flare-ups. Id. The Veteran's sensory examination revealed normal results in the lower extremities. Id. The Veteran declined experiencing radicular pain or any signs or symptoms due to radiculopathy. Id. During the April 2015 back DBQ, the Veteran complained of experiencing pain that was worse on the left with radiating pain to the toes. See April 2015 VA examination. He reported left leg weakness with use of a cane due to said weakness. Id. He reported experiencing flare-ups with increased use. Id. The Veteran's sensory examination revealed normal results except for decreased sensation in the left foot/toes. Id. The Veteran was noted to have radicular pain or other signs or symptoms due to radiculopathy. Id. The examiner found the Veteran experienced mild constant pain and mild intermittent pain in the right lower extremity. Id. The examiner found the Veteran did not have paresthesias and/or dysesthesias or numbness in the right lower extremity. Id. The examiner found the Veteran's right lower extremity radiculopathy severity to be "mild." Id. The Veteran was afforded another back DBQin August 2015 wherein the Veteran reported "constant" numbness and tingling in the right leg to the foot. See August 2015 VA examination. The Veteran's sensory examination was normal. Id. Radiculopathy was found with mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness in the right lower extremity. Id. The examiner did not indicate intermittent pain in the right lower extremity. Id. The femoral nerve and sciatic nerves were both reported as the nerve roots involved with the Veteran's radiculopathy of the bilateral lower extremities. Id. A severity of radiculopathy on each side affected was not provided. Id. Functional impact on the Veteran's ability to work was noted to be increased discomfort, pain, and radiculopathy with prolonged sitting and standing as well as any attempted bending, stooping, or lifting with range of motion dependent upon the severity of the episode. Id. The examiner found that the Veteran is restricted to semi-sedentary or sedentary work only. Id. The Veteran was afforded a peripheral nerves conditions DBQ in August 2015. The examiner reported that the Veteran has degenerative disc disease of the lumbar spine with radiculopathy. See August 2015 VA examination. The examiner found that the Veteran has mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness of the right lower extremity. Id. Intermittent pain was not indicated. Id. The Veteran's sensory examination was normal. Id. Trophic changes were not found. Id. The examiner found that the Veteran has incomplete paralysis of the sciatic nerve that is of a "mild" severity on the right. Id. Functional impact was noted to be as reported in the thoracolumbar DBQ. Id. Another peripheral nerves conditions DBQ was completed in December 2020. The Veteran reported that his radiculopathy began when his back condition started in 1994. See December 2020 VA examination. He indicated he is "no longer employed" due to no longer being able to perform "daily task[s]." Id. He stated that he cannot participate in sport activities, has limited ability to walk distances, cannot sit or stand for long periods of time, and is unable to sleep on his back. Id. The examiner found that the Veteran has mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the right lower extremity. Id. Constant right lower extremity pain was not found. Id. Sensation testing was normal. Id. Trophic changes were not found. Id. The examiner opined that the Veteran has incomplete paralysis of the right lower extremity associated with the sciatic nerve and femoral nerve that are both of a "mild" severity. Id. Regular use of a walker was noted for ambulation "because of his back issues." Id. The examiner opined that the Veteran's peripheral nerve condition and/or peripheral neuropathy impacts his ability to work due to decreased capacity to sit, stand, or walk and an inability to run, carry, or lift secondary to his back condition. Id. The Board finds the VA examinations of record are sufficient to determine the extent and severity of the Veteran's right lower extremity radiculopathy due to sciatic nerve when considered with the entire evidence of record during the appeal period. The Veteran's own descriptions of his limitations were taken into account in determining functional impact and symptom severity. Based upon consideration of the Veteran's VA examinations as well as his lay statements and the medical evidence of record, the Board is able to determine the severity of the Veteran's right lower extremity radiculopathy due to sciatic nerve for the purposes of assigning a disability rating. Upon review of the totality of the record beginning February 2013, the Board finds a rating in excess of 10 percent for right lower extremity radiculopathy due to sciatic nerve is not warranted as the Veteran's symptoms more nearly approximated mild incomplete paralysis of the sciatic nerve. Treatment records reflect competent and credible complaints of lower back pain radiating into the legs in 2013 at which time the Veteran denied experiencing numbness, tingling, or weakness. While the Veteran complained more of radiculopathy symptoms in the left leg in 2014, records do reflect continued reports of radiculopathy in the right lower extremity throughout the entire period on appeal. The Veteran did complain of pain, numbness, and weakness in the right lower extremity which is reflected in the 2015 and 2020 VA examinations. While the 2015 and 2020 VA examiners found mild paresthesias and/or dysesthesias and mild numbness, both examiners reported normal results from the sensory examination. As such, when determining severity, the Board assigns more probative value to the objective findings on examination over the subjective symptoms of paresthesias and/or dysesthesias and numbness. Further, the record lacks any evidence of, or complaints related to, impairment of motor functions, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis during the entire period on appeal. While the Board acknowledges the Veteran's own statement of "severe" radiculopathy in both lower extremities, the Board finds more probative the medical evidence of record indicating that the Veteran experiences pain, numbness, and tingling in the right lower extremity of a "mild" severity for the purposes of rating over the Veteran's statements made in association with his claim for increased benefits. Indeed, the medical evidence of record contains complaints of pain, numbness, and weakness in the right lower extremity but lacks complaints or symptoms such that a 20 percent disability rating for moderate incomplete paralysis would be warranted. Of note, during the April 2015 VA examination, the Veteran attributed the use of a cane to weakness of only the left leg, which has already been separately rated. Additionally, as mentioned above, while the 2015 and 2020 VA examiners found mild paresthesias and/or dysesthesias and mild numbness, both examiners reported normal results from the sensory examination. Further, a disability rating for severe incomplete paralysis under DC 8520 also requires evidence of marked muscular atrophy. None of the VA examinations of record found evidence of any muscular atrophy. While an examiner's use of the word "mild" in this case is not dispositive, the Board finds the medical evidence of record and objective testing results corroborate the examiner's assessment. The Board notes the Veteran's representative contended that if he had a peripheral nerves conditions DBQ when he first filed his claim, rather than only a back conditions DBQ, he would have been assigned a higher rating. The Board notes, however, the Veteran has been awarded a 10 percent disability rating effective the date of his claim in February 2013. Further, as previously mentioned, entitlement to an increased rating for right lower extremity radiculopathy due to femoral nerve is not properly before the Board as the issue has not been appealed. Based on the above, the Board finds that the Veteran's right lower extremity radiculopathy due to sciatic nerve is primarily manifest as pain with subjective complaints of paresthesias and/or dysesthesias and numbness that are most analogous to mild incomplete paralysis during the entire period on appeal. Accordingly, the preponderance of the evidence is against a rating in excess of 10 percent for right lower extremity radiculopathy due to sciatic nerve. As such, the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to TDIU is remanded. The Veteran contends he is unable to maintain employment due, in-part, to his service-connected right lower extremity radiculopathy. The Board finds remand is necessary for development of this claim. Here, the Board finds the Veteran raised the issue of entitlement to TDIU when he stated that he is "no longer employed" due to no longer being able to perform "daily task[s]" in association with his December 2020 peripheral nerves conditions DBQ. While the Board acknowledges previous VA examiners have attributed the Veteran's functional impact on his ability to work to his service-connected lumbar spine condition, the evidence of record reasonably raises the issue of TDIU based, at least in-part, on his right lower extremity radiculopathy symptoms. Thus, the Board infers a TDIU claim from the record; and as such, takes jurisdiction over the issue. Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). Based upon review of the record, however, the Veteran's current employability status is not clear, and development of this claim needs to be completed. To date, the RO has not provided the Veteran notice of the evidence required to substantiate a TDIU claim and has not solicited an employment and payment history to determine whether he was eligible for TDIU. Accordingly, remand is necessary for development of this claim. The matters are REMANDED for the following action: 1. Send the Veteran a notice letter, pursuant to 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), which advises him of the information needed to substantiate a claim for TDIU. In addition, ask the Veteran to complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information. (Continued on the next page) 2. After the above development and any additionally indicated development has been completed, readjudicate the claim. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.