Citation Nr: 21042387 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-35 100A DATE: July 12, 2021 ORDER Entitlement to a rating in excess of 10 percent for right lower extremity (RLE) radiculopathy prior to October 13, 2020, is denied. Entitlement to a disability in excess of 20 percent, for RLE radiculopathy beginning October 13, 2020, is denied. Entitlement to service connection for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. Prior to October 13, 2020, the Veteran's RLE radiculopathy is manifest by no more than mild incomplete paralysis. 2. Since October 13, 2020, the Veteran's RLE radiculopathy is manifest by no more than moderate incomplete paralysis. 3. The Veteran's left lower extremity radiculopathy is proximately due to service-connected right lower extremity radiculopathy. CONCLUSIONS OF LAW 1. Prior to October 13, 2020, the criteria for a disability rating in excess of 10 percent for RLE radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. 2. Since October 13, 2020, the criteria for a disability rating in excess of 20 percent for RLE radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 3. The criteria for service connection for left lower extremity radiculopathy, as secondary to right lower extremity radiculopathy, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1987 to May 1990 and from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In September 2019, the Veteran testified before the undersigned Veterans Law Judge and a transcript of the hearing is in the record. This case was previously before the Board in December 2019, when remanded for a VA examination. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating 1. Entitlement to a rating in excess of 10 percent for right lower extremity (RLE) radiculopathy prior to October 13, 2020, is denied. 2. Entitlement to a disability of 20 percent, but no higher, for RLE radiculopathy since October 13, 2020, is granted. In July 2013, the Veteran filed a claim for a lower back condition secondary to arthritis. In November 2013, the RO denied this claim, but granted a separate 10 percent disability rating for RLE radiculopathy, effective February 27, 2012. The Veteran timely disagreed, contending entitlement to a higher rating. In November 2020, the RO granted an increase to 20 percent disabling, effective October 13, 2020. The issue remained on appeal because these were not total disability ratings. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several DCs, 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 the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. (Neuritis and neuralgia of that group are evaluated under DCs 8620 and 8720.). 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 DCs 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. Prior to October 13, 2020: Regarding impairment of motor functions, there was none. Regarding trophic changes, there was none. Regarding sensory disturbance, there was decreased sensation. Regarding loss of reflexes, there was none. Regarding pain, the Veteran did report pain. Regarding muscle atrophy, there was none. Regarding complete paralysis, there was none. An April electromyography report showed "normal" findings. In May 2013, the Veteran reported to a private physiatrist about pain all the way down right leg and numbness into the ankle. The Veteran report physical therapy, injections, and medication as treatment for back pain. The Veteran reported being able to perform activities of daily living independently and walking without an assistive device. Physical examination showed no leg length discrepancy; a non-antalgic gait; toe, heel, and tandem walking without loss of balance; no edema, atrophy, or fasciculations; and "5/5" strength. The doctor assessed chronic low back pain with right leg radiation, "likely" L4-5 radiculopathy with a differential diagnosis of S1 radiculopathy. In July 2013, the Veteran underwent a VA examination for back conditions. The VA examiner noted findings "(slightly reduced right achilles reflex) are suggestive of a right S1 radiculitis with possible contribution from hip." In January 2014, the Veteran reported to the private physiatrist about 60-70 percent relief from a recent injection, but still had some pain "2/10" to 10/10" that worsened with standing or walking and some numbness and tingling in right leg. Physical examination showed a "normal" gait with no assistive devices and "5/5" strength. The doctor assessed lumbar radiculopathy. In May 2014, the Veteran reported that right leg pain after golfing and lots of walking, but it had since resolved. In June 2014, the Veteran underwent a VA examination. The VA examiner did not diagnose a peripheral nerve condition or peripheral neuropathy. The Veteran reported pain into his right leg labeled as radiculopathy without objective verification. The VA examiner noted that 2013 electromyography report disproved radiculopathy. The VA examiner noted no symptoms attributable to any peripheral nerve conditions. Muscle strength was "5/5." Reflexes were "2+." Sensation was "decreased" in upper anterior thigh, thigh or knee, lower leg or ankle, and foot or toes. There were no trophic changes. Gait was "normal." Sciatic nerve was "normal" with no incomplete or complete paralysis. The Veteran did not use an assistive device to walk. The VA examiner found no functional impact on the Veteran's ability to work. The VA examiner remarked that the leg pain was from hip and sacro-iliac joint, not radiculopathy, and noted a lack of muscular effort in his right leg and that the reported decreased sensation in right leg globally did not follow dermatomal patterns. In July 2014, the Veteran reported to the private physiatrist about "some" numbness or tingling in the right foot. On physical examination, the Veteran had a "mildly" antalgic gait with no assistive device, "5/5" strength, "intact" sensation, and no edema. The doctor assessed radicular pain related either to upper lumbar stenosis or hip joint pathology. In September 2014, the Veteran reported "sharp" radiation into both legs that was decreasing, "moderate" improvement with medication, was able to work without difficulty, but the pain increases walking "5/10" at worst, and was best with lying down. Physical examination showed "normal" strength and gait. In December 2014, the Veteran reported to a private nurse about intermittent radiating leg pain. Physical examination showed "normal" gait, sensation, and strength with "2/4" reflexes. In January 2015, the Veteran received another epidural steroid injection. In September 2019, the Veteran alleged worsened symptoms, including pain and numbness, since the June 2014 VA examination. The Veteran used a walker. Since October 13, 2020: Regarding impairment of motor functions, there was none. Regarding trophic changes, there was none. Regarding sensory disturbance, sensation was decreased. Regarding loss of reflexes, some were absent. Regarding pain, the Veteran reported pain. Regarding muscle atrophy, there was none. Regarding complete paralysis, there was none. In October 2020, the Veteran underwent another VA examination. The VA examiner diagnosed lower extremity radiculopathy (2019). The Veteran reported pain, but not taking any medications. The Veteran reported heating pad helped temporarily, as did resting, shifting positions, and warm baths. The Veteran reported using a cane and walker to relieve pain because it decreased weight bearing on hip and leg. Physical examination showed "severe" paresthesia or dysesthesia. Muscle strength was "3/5" at the right knee and "4/5" at the ankle. Reflexes were absent at the knee and hypoactive at the ankle. Sensation was "decreased" in the thigh and knee. There were no trophic changes. The Veteran had an antalgic gait. The sciatic nerve showed "moderate" incomplete paralysis. The Veteran report constant cane and occasional walker use. The VA examiner found the Veteran had extreme difficulty with prolonged sitting, walking, standing, getting into, and out of vehicles. Also, the Veteran struggled with getting into bathtub or shower and had pain with bending over to dress self. In December 2020, the Veteran denied numbness, tingling, or weakness to a VA rheumatologist. The Veteran reported to a VA orthopedic surgeon about working as a security guard that entailed "quite a bit of walking." On physical examination, the Veteran had a short stride and did not use an assistive device. Neurovascular status and proximal distal pulses in both lower extremities were "normal." There was no distal edema. The orthopedic surgeon offered assessment related to the Veteran's hip mechanics. Based on the above, the Board finds that the disability during this time frame is primarily manifest by sensory disturbance, loss of reflexes, and pain. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment most closely matches a mild incomplete paralysis prior to October 13, 2020, and moderate incomplete paralysis since October 13, 2020. The Board has considered all other potentially applicable DCs, 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 DC is not warranted. In conclusion, the Board finds that the preponderance of the evidence supports a 20 percent disability for RLE radiculopathy since at least October 13, 2020. The Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent prior to October 13, 2020, and in excess of 20 percent since October 13, 2020 for RLE radiculopathy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Service Connection 3. Entitlement to service connection for left lower extremity radiculopathy The October 2020 VA examination shows the Veteran has a current disability of left lower extremity radiculopathy, and the October 2020 VA examiner opined that it is at least as likely as not proximately due to or the result of service-connected right lower extremity radiculopathy. Upon review of the record, the Board finds the evidence supports that the Veteran's current left lower extremity radiculopathy is proximately due to service-connected right lower extremity radiculopathy. The VA examiner diagnosed left lower extremity radiculopathy, a new diagnosis is directly due to or related to the service-connected diagnosis of right lower extremity radiculopathy. The October 2020 VA examination report showed "mild" symptoms of left leg constant pain, paresthesias or dysesthesias, and numbness. Left knee reflexes were "1+." Left sciatic nerve examination showed "mild" incompletes paralysis. Accordingly, the Board finds that service connection for left lower extremity radiculopathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.