Citation Nr: 21040507 Decision Date: 07/05/21 Archive Date: 07/05/21 DOCKET NO. 16-09 276 DATE: July 5, 2021 ORDER Entitlement to a disability rating in excess of 20 percent prior to June 6, 2016, and in excess of 40 percent thereafter, for left lower extremity radiculopathy of the sciatic nerve is denied. Entitlement to a separate disability rating of 30 percent, but no higher, from March 6, 2019 for left lower extremity radiculopathy of the femoral nerve is granted. FINDINGS OF FACT 1. Prior to June 6, 2016, the Veteran's lower left leg radiculopathy of the sciatic nerve is manifested by no more than moderate incomplete paralysis. 2. From June 6, 2016, the Veteran's lower left leg radiculopathy of the sciatic nerve is manifested by no more than moderately severe incomplete paralysis. 3. From March 6, 2019, the Veteran's lower left leg radiculopathy of the femoral nerve is manifested by no more than severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent prior to June 6, 2016, and in excess of 40 percent thereafter for left lower extremity radiculopathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. From March 6, 2019, the criteria for entitlement to a rating of 30 percent, but no higher, for left lower extremity radiculopathy of the femoral nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty during Peacetime and the Gulf War era from January 1987 to January 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in March 2019. A transcript of the hearing has been associated with the Veteran's electronic claims file. The claim was denied in a July 2019 Board decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). A Joint Motion for Partial Remand (JMPR) was issued in April 2020 vacating, in part, the July 2019 Board decision and remanding for compliance with the terms of the JMPR. In October 2020, the Board remanded the appeal to the RO for additional development. The appeal has been returned to the Board for further consideration. Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. Entitlement to a rating in excess of 20 percent prior to June 6, 2016, and in excess of 40 percent thereafter, for left lower extremity radiculopathy Legal Criteria The RO has evaluated the Veteran's radiculopathy of the lower left extremity under DC 8520 for 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, Diagnostic Code 8520. Under these criteria, 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 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 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). Factual Background At an April 2012 VA consultation, the Veteran reported no weakness or persistent sensory impairment of the left lower extremity. The Veteran had normal strength in the left lower extremity. Deep tendon reflexes of the patella and achilles were hypoactive. The Veteran showed no sensory impairment of the left lower extremity. The Veteran's plantar reflexes were normal. Flexion, abduction, and external rotation (FABER) testing was normal. At the May 2012 VA examination the Veteran reported symptoms of lower extremity radiculopathy consisting of moderate constant pain in the left lower extremity. The Veteran reported severe paresthesias and/or dysesthesias and severe numbness in the left lower extremity. The examiner characterized the Veteran's left lower extremity radiculopathy as moderate in nature. On testing, the Veteran had decreased strength (4/5) on left knee extension, ankle dorsification, and great toe extension. The Veteran had no muscle atrophy. Deep tendon reflexes of the left knee and ankle were hypoactive. A sensory examination showed normal sensation of the left upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The examiner was unable to perform a straight leg raising test. At the June 2016 VA examination the Veteran reported symptoms of lower extremity radiculopathy consisting of moderate constant pain in the left lower extremity. The Veteran reported severe paresthesias and/or dysesthesias and severe numbness in the left lower extremity. The examiner characterized the Veteran's left lower extremity radiculopathy as moderate in nature. On testing, the Veteran had decreased strength (4/5) on left ankle dorsification and great toe extension. The Veteran had no muscle atrophy. Deep tendon reflexes of the left knee and ankle were hypoactive. A sensory examination showed decreased sensation of the left lower leg/ankle and foot/toes. Straight leg raising test results were positive on the left side. At a December 2016 VA physical medicine rehabilitation consultation for low back pain and bilateral hip pain, the Veteran was noted to be independent with activities of daily living without the use of an assistive device. The Veteran was noted to have an antalgic gait on the left and normal sensation in bilateral lower extremities. The treating physician determined that no routine follow up was needed, and the Veteran was referred to physical therapy for management of his symptoms. At the March 2019 Board hearing, the Veteran stated he was having constant pain in his left lower extremity, which was intense at times. The Veteran testified that he experienced "intense" pain that he characterized as a "ten" on a scale of one to 10, with 10 being the worst, when his medication wore off during the day, causing his pain to "really flare[]up." The Veteran testified to pain radiating from his left hip and the feeling of a "knot" in his hip that feels like "something there that I can't move out of the way." The Veteran testified to feeling constant pain in his shin to just above the ankle. The Veteran stated that he experiences restless leg which makes it difficult for him to sleep. The Veteran also reported numbness in his left toes along with inflammation. The Veteran noted two to three episodes per week of being unable to move his leg immediately after a 25-30 minute drive. In a May 2020 primary care message, the Veteran reported constant pain at a level of 8-10 out of 10 after a change in medication. The Veteran reported increased pain when his medication wore off and increased numbness, especially at night. In an August 2020 nurse practitioner note, the Veteran reported chronic pain in the low back, left hip, and bilateral lower extremities with the left worse than the right. The pain level was 9-10 on a 10 point scale, which had worsened and become acute over the past two months. The Veteran was most recently afforded a VA examination in January 2021. The Veteran reported increasing severity of symptoms of lower extremity radiculopathy consisting of severe pain, numbness, and tingling. Specifically, the Veteran reported episodes of sharp pain starting in the back and extending to the feet, and pain, weakness, numbness, tingling, and loss of reflexes in the bilateral lower extremities. These symptoms are treated with Epsom salt soaks, Celebrex, Tramadol, Gabapentin, Ibuprofen, Baclofen, and heat/ice. In reference to the Veteran's testimony at the March 2019 Board hearing, the examiner noted the Veteran's complaints of experiencing flare-ups with intense pain of 10 on a 10 point scale when his medication diminishes. The examiner noted severe constant pain in the lower left extremity as well as severe paresthesias and/or dysesthesias, and severe numbness. On testing, the Veteran had decreased strength (4/5) on knee extension, ankle plantar flexion, and ankle dorsiflexion. The Veteran had no muscle atrophy. A sensory examination showed that sensation of the left upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes was absent. The Veteran experienced no trophic changes and had a slightly unsteady gait. After consideration of the Veteran's subjective report of symptoms and physical examination findings, the VA examiner assessed the severity of the Veteran's left lower extremity radiculopathy as moderately severe incomplete paralysis of the sciatic nerve and severe incomplete paralysis of the femoral nerve. The Veteran's condition was noted to require constant use of a brace for support. A rating in excess of 20 percent prior to June 6, 2016, and in excess of 40 percent after June 6, 2016, for left lower extremity radiculopathy of the sciatic nerve Prior to June 6, 2016, the Board finds that the radiculopathy of the left leg sciatic nerve is primarily manifested by subjective evidence of moderate constant pain, severe paresthesias and/or dysesthesias, and severe numbness, and objective evidence of hypoactive deep tendon reflexes and normal sensation in the left upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes, with overall impairment assessed as moderate radiculopathy. The Board also finds that the most probative evidence of record is against a finding that the disability is manifested by impairment of motor functions (not more than mild), trophic changes, muscle atrophy, or complete paralysis. While the Veteran did report subjective complaints of severe symptoms, ultimately, the Board weighed more heavily the medical examiner's opinion that the Veteran's overall impairment was more moderate in nature. Indeed, the objective testing revealed normal sensation. The Board notes that the medical examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints, and to provide the requisite information for an evaluation of the disability under the rating schedule. For these reasons, greater evidentiary weight is placed on the medical findings in regard to the type and degree of the Veteran's impairment. From June 6, 2016, the Board finds that while the Veteran's symptoms of left lower extremity radiculopathy of the sciatic nerve have worsened, these symptoms continue to more nearly approximate moderately severe incomplete paralysis of the sciatic nerve. From June 6, 2016, the radiculopathy of the sciatic nerve is primarily manifested by subjective evidence of moderate constant pain, severe paresthesias and/or dysesthesias, and severe numbness, and objective evidence of hypoactive deep tendon reflexes, decreased sensation in the left lower leg/ankle and foot/toes, and a positive straight leg raising test. The Board also finds that the most probative evidence of record is against a finding that the disability is manifested by impairment of motor functions (not more than mild), trophic changes, muscle atrophy, or complete paralysis. While the Veteran did report subjective complaints of severe symptoms, ultimately, the Board weighed more heavily the medical examiner's opinion that the Veteran's overall impairment was more moderately severe in nature. The objective testing revealed decreased sensation. The Board notes that the medical examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints, and to provide the requisite information for an evaluation of the disability under the rating schedule. For these reasons, greater evidentiary weight is placed on the medical findings in regard to the type and degree of the Veteran's impairment. The January 2021 VA examination revealed more severe findings, however, another nerve was shown to now be affected as discussed below. The Board thus finds that the level of impairment of the sciatic nerve is most analogous to moderate incomplete paralysis prior to June 6, 2016 and moderately severe incomplete paralysis from June 6, 2016. Femoral Nerve Evidence also indicates that the left femoral nerve is affected. See January 2021 VA examination. Diagnostic Code 8526 provides ratings for the femoral nerve. Under Diagnostic Code 8526, a 10 percent rating is warranted for mild incomplete paralysis of the femoral nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the femoral nerve. A 30 percent rating is warranted when there is severe incomplete paralysis. A 40 percent rating is warranted when there is complete paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a. Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or, more appropriately in this case, the "same manifestation" under various diagnoses is to be avoided. For purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). Here, the Board finds that a separate rating for the femoral nerve of the left leg is warranted. At the March 2019 Board hearing, the Veteran testified to feeling a knot and pressure in his left hip area. At the January 2021 VA examination, the examiner found that sensation was absent in the left upper anterior thigh and the left thigh/knee. Ultimately, the examiner concluded that the Veteran had severe incomplete paralysis of the femoral nerve. Therefore, based on the evidence of record, a separate rating of 30 percent is established for the femoral nerve from March 6, 2019, the date that it is factually ascertainable that the Veteran experienced non-duplicative symptomatology of femoral nerve radiculopathy. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). While the Veteran may perceive that the severity of his disability at certain points during the appeal period is consistent with symptomatology associated with a higher disability rating, the medical experts determined that this in fact is not the case. The Board acknowledges that a March 2013 physical medicine rehab physician note indicates a showing of "atrophy of the left quadriceps compared to right" upon examination. However, the Board notes that this is the only mention of left lower extremity atrophy in the Veteran's treatment records, and that multiple VA examiners (including two examiners after the date of the March 2013 note) determined that the Veteran has no muscle atrophy. As such, the Board finds that this identification of atrophy of the left quadriceps is an outlier, and assigns it limited probative value in comparison to the complete VA treatment records and VA examinations. The Board also acknowledges the statements of the Veteran's spouse and co-workers regarding the severity of the Veteran's impairments as early as 2012, to include their observations that the Veteran has experienced constant back pain and difficulty walking and driving, and has numbness, balance problems, and difficulty tying his shoe laces. The Board notes that the Veteran is competent to give evidence about what he experiences. Further, the Veteran's co-workers and spouse are competent to describe symptoms they are able to perceive through the use of the senses. Layno v. Brown, 6 Vet. App. 465 (1994). This competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. This training and expertise is particularly important given the complexity of the Veteran's overall symptomatology, which encompasses a history of back surgeries as well as a low back disability and radiculopathy of the bilateral lower extremities. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Indeed, the Veteran is currently in receipt of a combined rating of 90 percent for his low back disability with bilateral radiculopathy (separate service connection is also in effect for radiculopathy of the right leg). Further, as discussed above, the Veteran has been granted a separate disability rating for radiculopathy of the left femoral nerve. Thus, the Veteran's high disability rating adequately contemplates all of his symptoms. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.