Citation Nr: 21042005 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 11-24 019 DATE: July 11, 2021 ORDER Entitlement to a separate rating of 20 percent for left lower extremity radiculopathy secondary to the lumbar spine disability is granted. REFERRED The issue of entitlement to service connection for polyneuropathy of the bilateral feet was raised in a July 2009 VA examination and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT The Veteran's lumbar spine degenerative disc disease is manifested by moderate left lower extremity radiculopathy. CONCLUSION OF LAW The criteria for a separate 20 percent rating for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8250 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1963 to March 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, a Travel Board hearing was held before the undersigned; a transcript is of record. In an October 2017 decision, the Board denied the Veteran's claims. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, in May 2018, the Court vacated and remanded the Board's decision. In July 2020, the Board denied entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc disease with disc herniation. The Veteran appealed the Board's decision to the Court. In March 2021, the Court granted a February 2021 Joint Motion for Remand (Joint Motion), vacating the July 2020 decision only to the extent the Board denied a separate rating for related-left-sided neurological abnormalities and remanding the issue to the Board. The Board notes that, as discussed in the Joint Motion, in an October 2009 rating decision, the RO deferred the issue of entitlement to service connection for polyneuropathy of the bilateral feet. In an October 2009 deferred rating decision, the RO noted that the July 2009 VA examination showed that the Veteran had decreased loss of vibratory sense in both of his feet. An opinion was requested to determine if these disabilities were due to the service-connected back condition. However, it does not appear that the issue has been adjudicated. Therefore, the issue is referred to the RO for adjudication. Entitlement to a separate rating for left lower extremity radiculopathy The Veteran filed a claim for an increased rating for his low back disability. Medical evidence of record, including an August 2019 VA examination report, shows that the Veteran has left lower extremity radiculopathy associated with his low back disability. An August 2010 lumbar spine MRI report indicated that Appellant had a mild disc bulge at L5-S1 which "likely contacts the exiting nerve root on the left." A September 2011 Pain Management Center of Flint treatment note stated that the Veteran reported having "low back pain radiating into the thighs with tingling as far distally as the feet." The September 2011 record also noted that the Veteran had no sensory, motor, or reflex abnormalities. A May 2015 lumbar spine VA examination report indicated the Veteran did not have radiculopathy on the left side. An April 2016 VA examination report also indicated the Veteran did not have radiculopathy. In a September 2018 private Lumbar Spine MRI Note, it was noted that the Veteran had bilateral lower extremity radiculopathy, right greater than left. The Veteran stated he had lower back pain with bilateral foot numbness. A September 2018 private EMG report noted that the Veteran reported "numbness in both feet which he has experienced for at least 2-3 years, but it is worsening." The Veteran's private physician diagnosed "moderate reduction of the compound muscle action potential with mild conduction slowing" of the left peroneal motor nerve (EDB), and a "severe reduction of the compound muscle action potential along with mild conduction slowing" of the left tibial motor nerve (AHB). The August 2019 VA examination report reflects that the Veteran had bilateral lower extremity radiculopathy, diagnosed in August 2019, which was noted to be an additional diagnosis pertaining to the thoracolumbar spine condition. The examiner noted that the Veteran reported "constant dull achy pain in lower back associated with bilateral lower extremity shooting numbness in his feet triggered by prolonged sitting and tingling sensation" and "infrequent shooting pain to level of the calves triggered by twisting motions." The examiner indicated that the Veteran had radicular pain or signs/symptoms due to radiculopathy, specifically left lower extremity mild intermittent pain (usually dull); moderate left lower extremity paresthesias and/or dysesthesias; and moderate left lower extremity numbness. The examination report indicated the involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve) in the left side. The examiner found the severity of the radiculopathy of the left side was moderate. Based on the evidence of record, including the August 2019 VA examination report, the Board finds that the Veteran has radiculopathy of the left lower extremity that is related to his low back disability. Accordingly, the Board finds that a separate rating for left lower extremity radiculopathy is warranted. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. The August 2019 VA examiner noted that the Veteran had involvement of the sciatic nerve on the left side. 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 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). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The Board finds that the left lower extremity radiculopathy is primarily manifest by mild intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness. The August 2019 VA examination report noted that the Veteran had moderate left lower extremity paresthesias and/or dysesthesias and numbness, and that the overall severity of the radiculopathy was noted to be moderate. As noted above, the September 2018 private treatment record noted moderate reduction of the muscle action of the left peroneal motor nerve and a severe reduction of the compound muscle action along with mild conduction slowing the left tibial motor nerve. The August 2019 VA examination report did not note any other radiculopathy symptoms and the Veteran did not have muscle atrophy. Therefore, the Board thus finds that the overall level of impairment of the left lower extremity radiculopathy is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a separate rating of 20 percent for left lower extremity radiculopathy have been met. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Marenna, 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.