Citation Nr: 22010766 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 18-36 644 DATE: February 24, 2022 ORDER Entitlement to an initial rating in excess of 40 percent for left lower extremity radiculopathy is denied. FINDING OF FACT The Veteran's left lower extremity radiculopathy is manifested by, at worst, moderately severe, incomplete paralysis; there is no severe incomplete paralysis and there is no marked muscular atrophy. CONCLUSION OF LAW The criteria for an initial rating in excess of 40 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 2004 to November 2004 and from December 2005 to November 2006. The Veteran appealed a January 2018 rating decision of the Agency of Original Jurisdiction (AOJ), which reduced his left lower extremity radiculopathy from 40 percent to 20percent, effective April 1, 2018. A Board hearing was held in October 2020. A transcript is of record. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Entitlement to an initial rating in excess of 40 percent for left lower extremity radiculopathy. The Veteran contends that his left lower extremity radiculopathy warrants a higher rating. He is in receipt of a 40 percent rating from May 16, 2017. The Veteran's 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 dangling and dropping, no active movement possible of muscles below the knee, and 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). February 2017 VA treatment records show complaints of pain radiating down the left leg and occasional tingling in left foot when standing. The Veteran stated that he has pain that radiates down his left leg with a pinching pain, that is not relieved with medication. The Veteran underwent a July 2017 VA back examination, which showed decreased sensation in his left thigh/knee and left lower leg/ankle and left foot/toes. Sensory tests were normal for the left upper anterior thigh. Straight leg raising test was negative. He had radicular pain and other symptoms due to radiculopathy. In his left lower extremity, he had mild constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. He did not have other signs or symptoms of radiculopathy. There was involvement of the L4/L5/S1/S2/S3 nerve roots (sciatic). The examiner described the Veteran's radiculopathy as severe. September 2017 VA treatment record shows reports that his back pain is causing tingling down the back of both legs for the previous 3 to 4 months; he stated that the pain increases when he is sitting down. December 2019 VA examination noted that the Veteran's lower extremity radiculopathy is aggravated/triggered by prolonged sitting. Sensory tests showed normal results for the left lower extremity. Straight leg raising test was positive. He had radicular pain and other symptoms due to radiculopathy. He had moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the sciatic nerve. The examiner described the Veteran's radiculopathy as moderate. During the October 2020 Board hearing, the Veteran testified that he never had a situation where his foot either dropped or dragged. He further testified that he feels numbness and pain down his leg to his toes. He stated that he must get up and walk around to limit the pain from intensifying, and he experiences loss of strength. See Board Hearing Tr. at 5. He testified that he does not experience tensing up of his muscles (muscle atrophy) and his disability mainly affects his daily activities. See Id at 7. October 2021 VA peripheral nerve examination noted moderate paresthesias and/or dysesthesias and moderate numbness in the left lower extremity. There was decreased sensation in the left lower leg/ankle and mild incomplete paralysis of the sciatic nerve. Test results were otherwise normal. November 2021 VA peripheral nerve examination noted moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the left lower extremity. Sensory tests showed decreased sensation in the left upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The report noted moderately severe incomplete paralysis in the left sciatic nerve. He did not use an assistive device. It was noted that, due to his peripheral nerves condition, the Veteran lost one to two weeks of work in the previous 12 months. He reported that he has had to miss at least a week of work in the previous year due to severe radiculopathy and he has trouble with prolonged sitting or standing that requires him to change positions frequently. Sensory tests from a November 2021 VA back examination showed normal left upper anterior thigh (L2) and thigh/knee (L3/4). There was decreased sensation in the lower leg/ankles (L4/L5/S1) and foot/toes (L5). Straight leg raising was negative. The Veteran had radicular pain and other symptoms due to radiculopathy. Specifically, he had moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in the left sciatic nerve. November 2021 VA treatment records show radicular symptoms with numbness down both lower extremities into the thighs and the legs. It was noted that his pain gets worse with both standing and prolonged sitting. He reported that most of the pain is located in his back and most of the numbness in his leg. He is able to perform stretching and lower leg exercises on his own. The examination demonstrated some mild giveaway weakness to the bilateral lower limbs. Sensory test showed diminished bilateral L4 and L5 dermatomes to light touch. The rating criteria specifically include the conjunctive "with," so that marked muscle atrophy must be present in conjunction with severe incomplete paralysis of the sciatic nerve in order to meet the criteria for the 60 percent schedular rating under DC 8520. Having considered evidence related to this disability, the Board concludes that an evaluation higher than 40 percent is not warranted. A higher rating would require there to be severe incomplete paralysis with marked muscular atrophy. However, the examiners did not find the Veteran to have muscular atrophy and the medical evidence of record does not establish that such is present. The Veteran also has not been found to have complete paralysis. Medical evidence regarding the Veteran's back condition generally describes his radicular symptoms as moderately severe. Indeed, the July 2017 VA examiner stated that the Veteran's radiculopathy was severe as exhibited by severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. However, the evidence does not demonstrate muscular atrophy, which is required for a higher 60 percent rating. As noted, the rating criteria include the term "with," meaning that marked muscle atrophy must be present to meet the criteria for an evaluation of 60 percent for severe incomplete paralysis of the sciatic nerve. Absent any indication of muscular atrophy, it cannot be stated that manifestations of the Veteran's radiculopathy meet the criteria for an evaluation of 60 percent. Further, as these characterizations are of a relative nature, the experience and knowledge of the various VA examiners with what is typical of manifestations of incomplete paralysis is of great probative value. In this case, that experience and knowledge has indicated the Veteran's condition is most accurately characterized as moderately severe incomplete paralysis. Finally, although the Veteran reported increasing lower extremity pain, tingling, and numbness with prolonged sitting, to date he has not had marked muscle atrophy. Ultimately, after consideration of the entire medical and lay evidence on appeal, the Board finds the Veteran exhibited moderately severe symptoms, because his ability to perform basic tasks, including prologued periods of standing, sitting, or driving, was impaired. Nevertheless, he is still able to walk and stand, without use of an assisted device, while having normal muscle strength without atrophy. Given the consistent description of symptoms throughout the appellate period, the Board finds that the Veteran's left lower extremity radiculopathy more closely approximates the criteria contemplated for moderately severe 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. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 40 percent for radiculopathy of his left lower extremity as there is no indication of any marked muscular atrophy or complete paralysis. 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. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Wilson, 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.