Citation Nr: 21041963 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 12-34 074 DATE: July 10, 2021 ORDER Entitlement to an initial disability of 40 percent, but no higher, for right lower extremity radiculopathy prior to January 10, 2017, is granted. Entitlement to a disability rating of 60 percent, but no higher, for right lower extremity radiculopathy, effective January 10, 2017, is granted. FINDINGS OF FACT 1. Prior to January 10, 2017, the Veteran's right lower extremity radiculopathy more nearly approximated moderately severe incomplete paralysis of the sciatic nerve. 2. From January 10, 2017, forward, the Veteran's right lower extremity radiculopathy more nearly approximated severe incomplete paralysis with marked muscular atrophy. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 40 percent for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for a disability rating of 60 percent for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 3, 1972 to June 15, 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Board denied the Veteran's claim. He appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court granted a Joint Motion for Remand (JMR), which vacated the denial and remanded the claim. In December 2019, the Board denied the Veteran's claim for a second time. He appealed that denial to the Court which granted a JMR in October 2020, vacating the denial and remanding the claim back to the Board. Most recently, in March 2021 the Board remanded this matter for further development in accordance with the Court's remand. That development having been completed, this matter has returned to the Board for further appellate review. On review of the record, the Board finds that there has been substantial compliance with its March 2021 remand directives, namely that the Veteran's updated VA treatment records were obtained and the Veteran was afforded a contemporaneous examination. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a remand request is required). The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Increased Rating VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes, a practice known as pyramiding, is prohibited. Id.; see 38 C.F.R. § 4.14. In disability rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco, 7 Vet. App. at 58; see also 38 C.F.R. § 3.400(o)(2). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert, 1 Vet. App. at 55; see also Wise, 26 Vet. App. at 532. If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's service-connected radiculopathy of the right lower extremity has been rated as 10 percent disabling prior to November 27, 2012; 20 percent disabling from November 27, 2012 to January 10, 2017; and 40 percent disabling thereafter under Diagnostic Code 8520, which pertains to paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve 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; and severe incomplete paralysis with marked muscular atrophy is rated as 60 percent disabling. A maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve. Id. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. The Board notes, for reference and illustrative purposes, that the definition for mild includes not very severe. See Webster's II New College Dictionary 694 (1995). In addition, a synonym for mild is slight and definitions for slight include small in size, degree, or amount. Id. at 1038. The definitions for moderate include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions of severe include extremely intense. Id. at 1012. It is also noted that the term moderately severe indicates impairment that is considered more than moderate, but not to the extent as to be considered severe. Regulations provide that ratings for peripheral neurological disorders are to be assigned based 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Statements by the Veteran's private physician, R.C.M., reflect the Veteran was experiencing lumbar radiculopathy which manifested in severe back pain radiating into his legs, which caused the Veteran to be unable to sit. See R.C.M., M.D. Statements dated June 29, 2009, October 2, 2009. A November 2009 VA examination report reflects the Veteran experienced pain radiating into his legs, with the right leg having more pain than the left. He further stated that the pain would occasionally cause him to lose his balance and prevent him from walking more than a few yards at a time. The examiner noted the Veteran used a cane and brace to assist in ambulation. Muscle strength testing was 4/5 for the Veteran's knee flexion, knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension. No muscle atrophy was noted. Sensory and reflex exams were normal. See November 2009 VA Spine Examination Report. In October 2010, the Veteran's lower extremity muscle strength was recorded as 5/5 with no atrophy. A neurological examination revealed normal reflex and sensory findings. See October 2010 VA General Medical Examination Report. A March 2012 statement by R.C.M. noted the Veteran had been evaluated for severe back pain. The Veteran reported that his pain level had increased over the past few years to an unbearable intensity and it hurt to stand, sit, or walk for fifteen or more minutes. The pain was noted to radiate into his legs and be increasing in severity. See March 2012 R.C.M., M.D. Statement. At November 2012 VA examinations, the Veteran reported his radiating pains have increased in intensity and frequency, and caused him to lose balance and fall. He further reported using a cane for balance. The examination reports reflect the Veteran experienced moderate constant pain, moderate intermittent pain, and mild paresthesias and/or dysesthesias. Sensory and reflex exams were normal. Muscle strength testing was 4/5 for knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. No atrophy was found. The examiner characterized the Veteran's impairment as mild incomplete paralysis of the sciatic nerve. See November 2012 Back Conditions Disability Benefits Questionnaire (DBQ); November 2012 Peripheral Nerves Conditions DBQ. A March 2013 statement by R.C.M. reported the Veteran was beginning to develop peripheral neuropathy in his feet. The Veteran reported he could only walk a quarter of a block before having to stop due to severe pain in his feet. R.C.M. attributed this pain to the Veteran's pes planus, radiculopathy, and peripheral neuropathy. See March 2013 R.C.M., M.D. Statement. VA treatment records reflect the Veteran was diagnosed with diabetic peripheral neuropathy of the bilateral lower extremities. The Veteran's right lower extremity motor strength was diminished, with impaired vibration sensory testing in his bilateral feet. See April 2013 Neurology Note; June 2013 Neurology Note. A private treatment note reflects the Veteran was able to stand and walk independently, but with a limp to the right side. His lower extremity reflexes and sensation for light touch were recorded as normal. The private physician stated that the Veteran's disability had increased, and his prescribed pain management did not relieve all pain. See June 2013 R.C.M., M.D. Chart Note. At a January 2017 VA examination, the Veteran reported incidences of his right leg giving way while he walks or stands causing him to fall. He further reported difficulty ambulating due to pain and needing to use a cane. The examiner noted the Veteran's right lower extremity radiculopathy symptoms consisted of moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Muscle strength testing was normal for the ankle plantar flexion and 4/5 for knee extension and ankle dorsiflexion. There was muscular atrophy in the right leg, 6 centimeters above the knee, with the normal side at 55 centimeters and the atrophied side at 50.5 centimeters. The Veteran's deep tendon reflexes were absent, and his sensory exam resulted in decreased findings for his upper anterior thigh and thigh/knee and absent findings for his lower leg/ankle and foot/toes. The examiner noted trophic changes of shiny, smooth, hairless skin, and loss of muscle tone on the right thigh. The Veteran's gait was recorded as antalgic due to his right lower extremity radiculopathy. The examiner characterized the Veteran's impairment as moderately severe incomplete paralysis of the sciatic nerve. See January 2017 Peripheral Nerves Conditions DBQ. During the pendency of the appeal, the Veteran underwent physical therapy to help alleviate his back pain, and by extension his radiculopathy pain. See Physical Therapy Notes dated April 2017, June 2017, July 2018, March 2019, December 2019 (reflecting some improvement in gait and flexibility). An April 2021 VA examination report reflects the Veteran experienced moderate intermittent pain, paresthesias and/or dysesthesias. Muscle strength testing was rated 4/5 for knee extension, ankle plantar flexion, and ankle dorsiflexion, with no muscular atrophy noted. Reflex exams were hypoactive for the Veteran's right knee and ankle. Sensory exams reflected absent sensation testing for light touch for the Veteran's right lower leg/ankle and foot/toes. The Veteran's gait was normal. The examiner noted trophic changes of shiny, smooth, hairless skin. The Veteran's radiculopathy was characterized as moderate incomplete paralysis of the sciatic nerve. No other nerves were recorded as affected. Regarding the Veteran's diabetic peripheral neuropathy, the examiner opined that both peripheral neuropathy and radiculopathy have similar and overlapping symptoms which makes it difficult to determine which condition is responsible for which symptom. See April 2021 Peripheral Nerves Conditions DBQ. After a careful review of the evidence, the Board finds that an initial rating of 40 percent, but no higher, is warranted prior to January 10, 2017, for the Veteran's right lower extremity radiculopathy. In this regard, the Veteran's muscle strength testing has been diminished throughout the appeal period. Moreover, the Veteran has consistently been reported as being unable to sit, stand, or lie down due to his radiculopathy pain, as well as having difficulty walking short distances without extreme pain or having his right leg give out causing him to fall. Although VA examination reports of record prior to January 10, 2017 reflect mild incomplete paralysis of the sciatic nerve, the Board finds that the totality of the Veteran's symptoms more nearly approximate moderately severe incomplete paralysis. However, the Board finds that a 60 percent rating is not warranted prior to January 10, 2017, as there is no evidence of the Veteran's radiculopathy manifesting in muscular atrophy of any kind prior to that date. 38 C.F.R. § 4.124a, Diagnostic Code 8520. From January 10, 2017 forward, the Board concludes that the Veteran's symptoms more nearly approximate a 60 percent rating, but no higher. Although the January 2017 VA examination medical examiner assessed the Veteran's right lower extremity radiculopathy as moderately, severe, incomplete paralysis, the record suggests that his disability more closely approximates the level of severe, incomplete paralysis with marked muscular atrophy. Marked is defined as "clearly defined and evident[.]" Marked, Webster's II New College Dictionary (3rd ed. 2005). The January 2017 VA examination reported muscular atrophy in the right thigh with the normal side at 55 centimeters and the atrophied side at 50.5 centimeters, for a difference of 4.5 centimeters. This rating also takes into account the Veteran's continued issues with his right leg giving way causing him to fall, requiring the constant use of a cane, and limiting his ability to walk, sit, or stand for any length of time. Furthermore, the Aril 2021 sensory and reflex exams show the Veteran's radiculopathy symptoms have increased since the January 2017 VA examination. The Board concludes; however, that a rating in excess of 60 percent is not warranted at any time during the appeal period. In this case, the record has consistently shown symptomatology of incomplete paralysis involving the Veteran's right lower extremity radiculopathy and not complete paralysis as required by the rating criteria. Specifically, VA examinations and private treatment records revealed that he has retained some active movement of muscles below the knee and there is no evidence that the foot dangles and drops. Finally, the Veteran's knee flexion has been consistently rated in muscle strength testing as 4/5, active movement against some resistance. Thus, the Board finds that a rating in excess of 60 percent disabling is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In considering the appropriate disability rating, the Board recognizes the Veteran's statements regarding the nature of his radiculopathy symptoms, which he has consistently described as severe pain which has increased during the appeal period. While the Veteran is competent to report his symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his neurological symptoms according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's neurological pathology has been provided by the medical personnel who have treated and examined him during the current appeal and who have rendered pertinent findings and/or opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that the evidence of record indicates that the Veteran has developed peripheral neuropathy of the lower extremities. However, the Veteran's peripheral neuropathy has been attributed to his non-service-connected diabetes mellitus. See April 2013 Neurology Note; June 2013 Neurology Note. Furthermore, the April 2021 VA examination medical examiner clarified that the symptoms of peripheral neuropathy and radiculopathy overlap and therefore it would be difficult to differentiate which symptom is attributable to which disorder. The Board notes that the only peripheral nerve that has been identified as affected throughout the appeal period is the sciatic nerve, for which the Veteran is already service-connected. Accordingly, a separate rating would not be warranted as such would constitute pyramiding given the commonality of symptoms. 38 C.F.R. § 4.14. In conclusion, the Board finds that the evidence for and against the Veteran's claim for a higher rating of his service-connected right lower extremity radiculopathy is at least in equipoise. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to a 40 percent rating prior to January 10, 2017, and a rating of 60 percent thereafter for the Veteran's right lower extremity radiculopathy, is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.