Citation Nr: 21032111 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 14-30 572 DATE: May 25, 2021 ORDER Entitlement to an initial rating of 60 percent for service-connected left lower extremity radiculopathy, prior to April 26, 2019, is granted. Entitlement to a disability rating higher than 60 percent for service-connected left lower extremity radiculopathy, from April 26, 2019, is denied. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, throughout the entire appeal period, the Veteran's left lower extremity radiculopathy has manifested to no more than severe incomplete paralysis, with marked muscular atrophy. CONCLUSIONS OF LAW Prior to April 26, 2019, the criteria for an initial rating of 60 percent prior, but not higher, for service-connected left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. From April 26, 2019, the criteria for a disability rating higher than 60 percent for service-connected left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the Army from September 1982 to April 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Winston-Salem, North Carolina. This matter was previously before the Board in June 2018 and March 2021, where it was remanded for further development. The Board notes that there was substantial compliance with its March 2021 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Rating Disability ratings are determined by applying the criteria set forth in the schedule of ratings. 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. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. Entitlement to an initial rating of 60 percent, but not higher, throughout the entire appeal period, for service-connected left lower extremity radiculopathy. The Veteran contends that his currently assigned evaluations for his left lower extremity radiculopathy does not accurately reflect the severity of his disability, and therefore, higher evaluations are warranted. The Veteran's service-connected left lower extremity radiculopathy of the sciatic nerve is currently evaluated at 40 percent prior to April 26, 2019, and evaluated at 60 percent thereafter, under the appropriate DC 8520, which evaluates diseases of the sciatic nerve. Under DC 8520, a 20 percent evaluation is warranted for moderate incomplete paralysis; a 40 percent evaluation is warranted for moderately severe incomplete paralysis; a 60 percent evaluation is warranted for severe, with marked muscular atrophy, incomplete paralysis; and the highest evaluation of 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis. 38 C.F.R. § 4.123. The words "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. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. After review of the record, the Board finds that an initial rating of 60 percent is warranted for the Veteran's left lower extremity radiculopathy. VA treatment records during the appeal period reflect complaints for left lower extremity pain, numbness, tingling, and weakness, with a tendency to drag the left foot at times. Additionally, a July 2011 nerve conduction exam revealed a diagnosis of moderately severe left peroneal nerve mononeuropathy, with mild sensory and decreased sensation in the left toes. In an August 2009 lay statement, the Veteran asserted that he experiences left lower extremity instability due to his left knee giving way; with the inability to walk, stand, or run for long periods. See VA 21-4138, August 2009. In a December 2011 VA back examination, the examiner noted the Veteran has intermittent left lower extremity numbness, weakness, pain, and a burning sensation in the left foot. The examiner further noted the Veteran has radicular pain and signs due to radiculopathy, with left lower extremity symptoms of severe constant pain, severe paresthesias/dysesthesias, and severe numbness which the examiner noted involved the left sciatic nerve. The Veteran's muscle strength testing of the left lower extremity resulted in a 4 out of 5 for the knee and a 5 out of 5 for the ankle and great toe, with no muscle atrophy shown. Left lower extremity reflexes were 2+, and left lower sensory examination was decreased in the thigh/knee and absent in the lower leg/ankle and foot/toes; with a positive straight leg raising test. The examiner concluded that the Veteran's left lower extremity radiculopathy of the sciatic nerve was of a severe severity level. See VA Examination, December 2011. In a December 2011 VA peripheral nerves examination, the examiner diagnosed the Veteran with peripheral neuropathy, with left lower extremity symptoms of severe constant pain, severe paresthesias/dysesthesias, and severe numbness; however, noted that all of the Veteran's peripheral nerves were normal. The Veteran's muscle strength testing of the left lower extremity resulted in a 4 out of 5 throughout, with no muscle atrophy shown. Left lower extremity reflexes were 2+, and left lower sensory examination was decreased in the thigh/knee and absent in the lower leg/ankle and foot/toes. The Veteran's gait was abnormal due to him dragging his left foot. See VA Examination, December 2011. In a January 2016 VA back examination, the examiner noted the Veteran has radiation into the left leg with burning sensation and numbness. The examiner further noted the Veteran has radicular pain and signs due to radiculopathy, with left lower extremity symptoms of moderate constant pain, severe intermittent pain, severe paresthesias/dysesthesias, and severe numbness which the examiner noted involved the left sciatic nerve. The Veteran's muscle strength testing of the left lower extremity resulted in a 4 out of 5 for the knee, ankle plantar, and great toe, and a 5 out of 5 for the ankle dorsiflexion, with no muscle atrophy shown. Left lower extremity reflexes were 1+, and left lower sensory examination was decreased throughout. The examiner concluded that the Veteran's left lower extremity radiculopathy of the sciatic nerve was of a severe severity level. See C&P Exam, January 2016. In an April 2016 VA peripheral nerves examination, the examiner noted the Veteran's weakness, instability, and sharp pain of the left lower extremity; and diagnosed the Veteran with radiculopathy of the left lower extremity and muscle atrophy of the left calf. The Veteran's left lower extremity symptoms were indicated as mild constant pain, severe intermittent pain, severe paresthesias/dysesthesias, and severe numbness. The Veteran's muscle strength testing of the left lower extremity resulted in a 5 out of 5 throughout, except for the ankle dorsiflexion, which revealed a 4 out 5. Muscle atrophy was shown; with left lower extremity reflexes being 1+, and left lower sensory examination showing decreased lower leg/ankle and foot/toes. The Veteran's gait was abnormal (steppage gait) due to impairment of the peroneal nerve. The examiner concluded that the Veteran's left lower extremity radiculopathy involved the sciatic nerve, as shown as incomplete paralysis of a severe, marked muscular atrophy severity level; as well as, involved the external popliteal nerve, as shown as incomplete paralysis of a severe severity level. See C&P Exam, April 2019. Based on the above, the Board finds that an initial 60 percent rating, but not higher, is warranted for the Veteran's left lower extremity radiculopathy during the entire period on appeal. The weight of the evidence of record throughout the appeal period is sufficient to meet the criteria for the next-higher 60 percent initial rating, as the severity of the Veteran's symptoms more closely approximate that of severe incomplete paralysis with marked muscular atrophy; which is commensurate of a 60 percent evaluation under DC 8520. The Board notes that the relevant medical evidence of record reveals that the Veteran's left lower extremity radiculopathy, during the relevant period, has manifested to symptoms of such a severity, frequency, and/or duration as to warrant a higher 60 percent initial rating. Specifically, the VA examinations throughout the entire appeal period have all indicated that the Veteran's symptoms were severe in intermittent pain, paresthesias/dysesthesias and numbness, with a fluctuating severity level for constant pain; as well as, all examiners concluding that the Veteran's left lower extremity nerve condition is of a severe severity level. Additionally, the evidence revealed the Veteran has an abnormal gait; with the Veteran's assertions, beginning in 2009, showing he has trouble walking and stability issues, which is evidence of symptoms of muscle atrophy. In this regard, the Board notes that the ponderance of the evidence is essentially in favor of the higher 60 percent initial rating, or at the very least in relative equipoise, and thus, resolving all reasonable doubt in favor of the Veteran, the assignment of a 60 percent rating throughout the entire appeal period is warranted. However, the Board further notes that the higher rating of 80 percent is not warranted as the evidence does not reflect the Veteran has complete paralysis to the point that his foot dangles and drops, with no active movement possible of muscles below the knee and flexion of the knee weakened or (very rarely) lost. While the Board acknowledges the medical evidence in July 2011 and December 2011 reflecting that the Veteran drags his left foot at times, this evidence is not of such a severity, frequency, and/or duration to show that the Veteran has complete paralysis in the left foot with no active movement possible. Additionally, the Board has considered whether any other DCs are applicable to warrant a higher and/or separate rating; specifically that of DC 8521, as the April 2019 VA examiner indicated the Veteran also had severe left lower extremity incomplete paralysis of the external popliteal nerve. Under DC 8521, which evaluates the external popliteal nerve, the highest rating is that of 40 percent, which would not result in a higher rating in this case. Furthermore, the Board cannot grant a separate rating under this DC, as a separate rating compensating the same symptoms of pain, numbness, weakness, and instability would constitute pyramiding, which is impermissible. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). The Board notes that the lay assertions of record have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that they have argued that a higher rating than 60 percent for the Veteran's left lower extremity disability is warranted, these assertions are outweighed by more probative evidence provided by the medical evidence of record, to include the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay statements do not provide any basis upon which to assign any higher rating. Therefore, the Board concludes, based on consideration of the medical and lay evidence, an initial rating of 60 percent, but not higher, for the Veteran's service-connected left lower extremity radiculopathy throughout the entire appeal period is warranted; and the claim is granted. Nevertheless, the Board acknowledges and has considered the Veteran's argument that there is entitlement to a greater level of compensation on an extraschedular basis for his service-connected left lower extremity radiculopathy. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedular is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits for the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong in Thun, the evidence does not reflect that such an exceptional disability picture is present to warrant the available schedular criteria for the Veteran's left lower extremity radiculopathy inadequate. A comparison between the level of severity and symptomatology of the Veteran's left lower extremity radiculopathy with the established criteria shows that the rating criteria under DC 8520 reasonably described his disability level and symptomatology with respect to the symptoms he experienced. During the period on appeal, the VA examiners diagnosed the Veteran with radiculopathy of the left lower extremity, as reported by the Veteran and the examiners as being of a severe severity level with muscle atrophy; however, the examiners nor the Veteran otherwise assert any unusual symptoms or manifestations that they believed to be related to his left lower extremity radiculopathy. DC 8520 specifically instructs that a 60 percent disability rating be assigned for severe incomplete paralysis with marked muscular atrophy. As such, the Veteran's precise symptomatology and effects are contemplated by the rating schedule. Due to the available schedular rating adequately contemplating the Veteran's levels of disability and symptomatology for his service-connected left lower extremity radiculopathy, the second and third elements under Thun become moot. Therefore, as the Board is unable to identify an exceptional or unusual disability picture, and the Veteran has not provided any additional information to support an extraschedular review, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology. Thus, referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted; and the claim is denied. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has argued that a higher rating for left lower extremity radiculopathy is warranted, these assertions are outweighed by more probative evidence of record, to include relevant law. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hodges, 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.