Citation Nr: 21040903 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-21 632 DATE: July 7, 2021 ORDER Entitlement to an initial disability evaluation of 10 percent, but no higher, from May 1, 2012, for right-lower-extremity radiculopathy, sciatic nerve, is granted. Entitlement to an initial disability evaluation of 10 percent but no higher, from May 1, 2012, for left-lower-extremity radiculopathy, sciatic nerve, is granted. FINDINGS OF FACT 1. The objective medical evidence shows that it is as likely as not that from separation from service, the Veteran demonstrated right-lower-extremity radiculopathy, sciatic nerve, that approximated no more than mild incomplete paralysis for neuralgia of the sciatic nerve. 2. The objective medical evidence shows that it is as likely as not that from separation from service, the Veteran demonstrated left-lower-extremity radiculopathy, sciatic nerve, that approximated no more than mild incomplete paralysis for neuralgia of the sciatic nerve. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for an initial disability evaluation in excess of 10 percent, but no higher, from May 1, 2012, for right-lower-extremity radiculopathy, sciatic nerve, been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8720. 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for an initial disability evaluation in excess of 10 percent, but no higher, from May 1, 2012, for left-lower-extremity radiculopathy, sciatic nerve, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1992 to April 2012. By rating action of August 2018, service connection was granted for radiculopathy of both lower extremities, secondary to low back pathology. A 10 percent rating was assigned for each effective February 26, 2018. The Veteran appealed the rating, and indicated it should have been from an earlier time. The Board remanded the issues in September 2019, for development discussed in more detail below. While in remand status, the Originating Agency assigned a 10 percent rating for each lower extremity from May 11, 2016. This was said to be the date of the first medical evidence with objective findings that confirmed radiculopathy into the lower extremities. Separate compensable ratings were also assigned for femoral nerve involvement of the lower extremities, and there has been no disagreement with that action, leaving the above issues for appellate review. Schedular Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 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. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the relevant overall temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as "pyramiding," must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14. 1. Entitlement to an initial disability evaluation in excess of 10 percent prior to and after May 11, 2016 for right-lower-extremity radiculopathy, sciatic nerve. 2. Entitlement to an initial disability evaluation in excess of 10 percent prior to and after May 11, 2016 for left-lower-extremity radiculopathy, sciatic nerve. Radiculopathy of the left and right sciatic nerves has been evaluated as 10 percent disabling throughout the appeal period pursuant to Diagnostic Code 8720 for neuralgia of the sciatic nerve, under which 10 percent, 20 percent and 40 percent evaluations are warranted where there is mild, moderate and moderately-severe incomplete paralysis of the sciatic nerve, respectively. A 60 percent evaluation is assigned where there is severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A maximum 80 percent evaluation is available where there is complete paralysis of the sciatic nerve, wherein the foot dangles and drops, no active movement is possible of muscles below the knees and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates impairment of function of a degree substantially less than complete paralysis, 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, Note. Terms such as "mild," "moderate," "moderately severe," and "severe" are not defined by the rating criteria. Rather than applying a mechanical formula, the Board must evaluate all of the evidence and render factual findings and a decision that is "equitable and just." 38 C.F.R. § 4.6. In its September 2018 Remand, the Board found the January 2014 and February 2018 VA examinations for back provided an inadequate basis upon which to evaluate the neurological symptoms of the radiculopathy claims, as neither VA examiner referred to the private medical records received from September 2012 through March 2013, which document reported radicular pain and reported findings of radiculopathy in the Veteran's lower extremities, associated with service-connected degenerative joint disease of the thoracolumbar spine as early as in 2012. These records reveal results of magnetic resonance imaging (MRI) and findings of decreased strength in hip ranges of motion and in knee flexion bilaterally. The records show the Veteran was treated with a series of epidural injections, prescribed medications, physical therapy, facet nerve blocks innervating L4-5 and L5-S1 facet joints, and radiofrequency ablation at the same sites. The Board directed there be a new VA examination and the VA examiner review the private medical records between 2012 and 2013. The VA examiner was further requested to comment on the nature and extent of radiculopathy in the bilateral lower extremities from 2012 to the present, descriptions of which should include sufficient detail to allow the Agency of Original Jurisdiction (AOJ) to evaluate properly functional impairment arising from bilateral lower-extremity radiculopathy throughout the appeal period. The Board further notes from its current review of the record that the Veteran presented to his private treatment provider in April 2016 for a series of back x-rays to aid in the identification of his radicular pain. General examinations showed the Veteran's lower-extremity strength remained at 5/5 (full) and he showed sensation to light touch in the bilateral lower extremities. His assessments throughout the period included lumbar radiculopathy and neuropathic pain. From May through July 2016, the Veteran underwent a series of fluoroscopically-guided epidural injections to his lower back for targeted pain relief. As directed in the September 2018 Remand, new examinations are now of record. A VA examination for thoracolumbar-spine conditions was conducted in December 2020, stating 2012 diagnoses for right-lower extremity and left-lower-extremity radiculopathy and thoracolumbar-spine degenerative joint disease. However, the AOJ noted the December 2020 examiner found only bilateral femoral-nerve radiculopathy, in conflict with all past examinations, to include the February 2018 back examination, which found only bilateral sciatic nerve radiculopathy. Therefore, the AOJ requested an additional VA examination for peripheral nerves conditions and clarification on the current existence of the sciatic nerve condition. In the March 2021 VA examination for peripheral nerves, the VA examiner conducted an in-person examination of the Veteran and she stated she performed a records review of the VA e-folder, as requested by the AOJ in its request for a clarification addendum after the December 2020 VA examination for thoracolumbar-spine conditions. She stated 2012 diagnoses for right-lower-extremity radiculopathy, left-lower-extremity radiculopathy and bilateral upper extremity neuropathy. She noted the Veteran's reports of a 2012 onset of sharp, "hot" bilateral foot pain, now continuing as bilateral foot and leg-pain. She further noted the Veteran's reports of experiencing shooting pain down the back side of his legs into his feet with prolonged sitting, indicating involvement of the sciatic nerve. Based on the above reports, the March 2021 VA examiner found moderate right-lower extremity and left-lower-extremity intermittent pain. On examination, all lower-extremity muscle-strength testing and sensory testing showed normal results, as did deep tendon reflexes. She further found the Veteran's gait remains normal and she noted the Veteran used no assistive devices. The March 2021 VA examiner found mild right and left incomplete paralysis of the sciatic nerve. The record shows the January 2014 VA examiner made no findings of radicular signs and symptoms. The February 2018 VA examiner found mild intermittent pain, numbness and tingling associated with radicular pain and a mild level of severity affecting the sciatic nerve. The March 2021 VA examiner for peripheral nerves conditions, after review of the 2012 through 2013 records as directed in the Board's September 2018 Remand, found only moderate intermittent pain and mild, incomplete paralysis of the right-lower-extremity and the left-lower-extremity. She further found all strength, sensory and reflex testing, as well as the Veteran's gait, were normal. While there are minimal clinical findings prior to May 2016, all examiners seem to agree that the radiculopathy was present from 2012. This is consistent with the Veteran's complaints. Moreover, one recent examiner found that there was radiculopathy without active findings on that particular day, noting no change from 2012. Thus, resolving reasonable doubt in the Veteran's favor, the Board concludes that the 10 percent rating, but no more, assigned to each extremity, should be effective from May 1, 2012, the day following separation from service. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.