Citation Nr: 22012435 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 15-24 553 DATE: March 3, 2022 ORDER Entitlement to an initial rating of 20 percent, but no higher, prior to July 16, 2021 for right lower extremity radiculopathy is granted. Entitlement to a rating in excess of 20 percent from July 16, 2021, onward for right lower extremity radiculopathy is denied. FINDING OF FACT Throughout the appeal period, the Veteran's right lower extremity radiculopathy has more closely approximated moderate incomplete paralysis. Moderately severe, severe with marked muscular atrophy, or complete paralysis has not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but no higher, prior to July 16, 2021, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for a rating in excess of 20 percent since July 16, 2021, onward for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1983 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the June 2013 rating decision denied an increased rating for the Veteran's low back disability. The Veteran appealed the decision to the Board, and entitlement to a separate rating for right lower extremity radiculopathy was found to be part-and-parcel of his low back increased rating claim and was added to the appeal in July 2020 at which time the Board remanded the claim for additional development. Thereafter, a November 2020 rating decision granted a separate 10 percent rating for the Veteran's right lower extremity radiculopathy. However, as this grant was not the maximum schedular rating available, and the Veteran indicated that he was continuing to seek a higher rating, the Board determined that the issue was still in appellate status and remanded the claim in November 2021 for the issuance of a supplemental statement of the case (SSOC). In a November 2021 rating decision, the RO granted an increased 20 percent rating for the right lower extremity radiculopathy effective July 16, 2021. However, as this again is less than the maximum benefit allowed under VA law and regulations, the claim for an increased rating remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). As noted above, the Board remanded the claim on appeal in July 2020 and November 2021. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Increased rating for right lower extremity radiculopathy The Veteran seeks a higher rating for his right lower extremity radiculopathy. For the reasons that follow, the Board finds that an increased rating is only warranted for the period prior to July 16, 2021. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's right lower extremity radiculopathy is currently rated 10 percent disabling prior to July 16, 2021, and 20 percent disabling thereafter pursuant to DC 8520. DC 8520 pertains to paralysis of the sciatic nerve. Under this DC, mild incomplete paralysis is rated 10 percent disabling, moderate incomplete paralysis is rated 20 percent disabling, moderately severe incomplete paralysis is rated 40 percent disabling, and severe incomplete paralysis (with marked muscular atrophy) is rated 60 percent disabling. An 80 percent rating is warranted where there is complete paralysis and the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The terms "mild," "moderate," "moderately severe," and "severe" are not defined in the regulations, and rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 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. Additionally, where terms are not defined by regulation, the Board must provide a detailed statement of reasons and bases that explains how the Board applied the terms used to the veteran's symptomatology in a way that is understandable to the veteran. Pennington v. Wilkie, No. 18-5600, 2020 U.S. App. Vet. Claims LEXIS 302 (Vet. App. Feb. 24, 2020). Webster's II New College Dictionary defines "mild," as relevant here, as "not severe." Id. at 694 (1995). A synonym for "mild" is "slight," and definitions for "slight" includes "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 for "severe" include "extremely intense." Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." Additionally, 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. Resolving all reasonable doubt in favor of the Veteran, the Board finds that his right lower extremity radiculopathy has more nearly approximated moderate incomplete paralysis throughout the entire appeal period. The evidence of record shows that throughout the appeal period the Veteran has experienced intermittent sensory deficits that have resulted in some functional impairment, hypoactive or hyperactive deep tendon reflexes, and intermittent sensory symptomatology. The Veteran initially underwent a VA examination in June 2013 at which time hypoactive right knee and right ankle deep tendon reflexes were noted. Although no sensory symptomatology was noted and the Veteran's sensory examination was normal, a May 2014 VA treatment record noted right leg paresthesias along with gait disturbance and focal weakness to the right lower extremity. The Veteran also reported in a June 2015 correspondence that there was a difference in reaction and feeling in his right leg. At a November 2019 VA fee-based examination, decreased sensation to the right foot was noted, as well as hyperactive right knee and right ankle deep tendon reflexes. The Veteran also reported that he had difficulty with positioning his right foot and trips at times due to the decreased sensation. He also reported difficulty with dressing, specifically putting on pants because he could not feel his foot. At a September 2020 VA fee-based examination, the Veteran reported moderate intermittent pain, paresthesias, and numbness. The Veteran's deep tendon reflexes were noted as normal, and no sensory deficits were found on examination. However, the examiner reported that the Veteran had difficulty with proprioception, has instability, and has pain with weight bearing for extended periods of time with strenuous activity like walking. The examiner opined that the Veteran had mild right lower extremity incomplete paralysis. In an October 2021 statement, the Veteran reported that his main concern has always been the lack of sensation in his right lower extremity, indicating that he has experienced such throughout the entire appeal period. See also July 2021 VA fee-based examination (noting decreased sensation on examination). Thus, in light of the foregoing, particularly the Veteran's abnormal deep tendon reflexes at the knee and ankle as well as his sensory deficits that have resulted in moderate functional impairment (i.e., difficulty putting on socks and shoes and standing/walking for prolonged periods of time), the Board finds that the Veteran's right lower extremity radiculopathy has more nearly approximated moderate incomplete paralysis throughout the entire appeal period. However, the Board finds that at no point has the Veteran's sciatic nerve impairment more nearly approximated moderately severe incomplete paralysis. While the Veteran has experienced sensory symptomatology and deficits, his muscle strength was found to be normal at all of the aforementioned VA examinations as all as at the July 2021 VA fee-based examination. Although the Veteran has experienced some weakness in his right lower extremity, such has been intermittent. See July 2018, May 2019, and May 2020 VA treatment records (denying weakness). Deep tendon reflexes have at most been hypoactive or hyperactive, not absent. See also September 2020 and July 2021 VA fee-based examinations (noting normal deep tendon reflexes). Additionally, no muscle atrophy or trophic changes have been noted. Given that the record is absent findings of atrophy, loss of tone, loss of muscle strength, absent deep tendon reflexes, or trophic changes, the Board finds that the Veteran's right lower extremity radiculopathy has not more nearly approximated moderately severe incomplete paralysis at any point during the relevant appeal period. Nor has severe or complete paralysis been shown. The Board notes that prior to the filing of the Veteran's claim for an increased rating for his back in April 2013 (from which the current appeal stems), the evidence of record shows that the Veteran experienced right lower extremity sensory symptomatology, such as numbness and weakness, with prolonged standing and walking but that such symptoms resolved after his September 2012 back surgery. However, as the evidence discussed above demonstrates, although the Veteran's symptoms may have resolved prior to the filing of his claim, such symptoms reoccurred during the appeal period and thus warrant compensation. Moreover, while VA treatment records in the year prior to his April 2013 claim indicate that the Veteran experienced right lower extremity pain, such does not warrant a rating prior to the date of his claim. See Gatson v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In this regard, while the Veteran experienced symptoms in the year prior to his claim, the evidence of record does not indicate that he developed radiculopathy or that it increased in severity in the year prior to his claim. Rather, the record indicates that symptoms were associated with his foot. See May 2012 VA treatment record (reporting that the Veteran's symptoms began "in the last year"); June 2012 VA treatment record (reporting that Veteran's symptoms began "a bit over a year ago"). Thus, as the Veteran's radiculopathy did not develop/increase in severity more than a year prior to the filing of his April 2013 claim, an earlier rating is not warranted. In sum, the Board finds that the Veteran's right lower extremity radiculopathy has more nearly approximated moderate incomplete paralysis throughout the entire appeal period but has no point more nearly approximated moderately severe incomplete paralysis. As such, a higher rating is only warranted for the period prior to July 16, 2021. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mortimer, 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.