Citation Nr: 22012657 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 17-24 396 DATE: March 4, 2022 ORDER Prior to January 15, 2020, entitlement to an initial disability rating of 20 percent, but no higher, for left lower extremity radiculopathy is granted. From January 15, 2020, entitlement to an initial disability rating of 40 percent, but no higher, for left lower extremity radiculopathy is granted. FINDINGS OF FACT 1. Prior to January 15, 2020, the Veteran's left lower extremity radiculopathy was manifested by moderate incomplete paralysis. 2. From January 15, 2020, the Veteran's left lower extremity radiculopathy has been manifested by moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to January 15, 2020, the criteria for entitlement to a rating of 20 percent, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. 2. From January 15, 2020, the criteria for entitlement to a rating of 40 percent, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1972 to January 1996. In October 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Increased evaluation for left lower extremity radiculopathy The Veteran filed his claim for an increased rating for lumbosacral strain in March 2016. The Veteran seeks a higher rating for his left lower extremity radiculopathy, which has been rated under DC 8520 for disabilities of the sciatic nerve, at 10 percent disabling prior to January 15, 2020, and as 20 percent disabling thereafter. The Board notes that the Veteran was initially rated under DC 8620 for neuritis. At the time of the October 2019 Board hearing, the Veteran testified that he had fallen three times from loss of strength in his left leg, which has contributed to problems with his back. He believes the last time he fell was in 2016 when he was treated in Maryland. It was recommended he have surgery, which he was not able to complete because of issues with insurance coverage. The Veteran testified that his endurance level had gone down since his VA examination in May 2016. In his July 2016 notice of disagreement, the Veteran requested a 60 percent evaluation for radiculopathy of the left lower extremity. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, 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 reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 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 Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on 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 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). A telephone triage note from June 2015 reflects the Veteran reported pain radiating down his left leg. Private treatment notes from July 2015 reflect the Veteran had been doing well until three months earlier when he started having pain in his back and down his left leg. Upon physical examination, there was pain on extension and rotation to the left side. Straight leg raising was positive on the left. No major neurological deficits were noted. Mild weakness in dorsiflexion of his left great toe was noted along with slight tingling in his left foot. The plan was to set him up for an epidural steroid injection. Follow up private treatment notes from October 2015 reflect the Veteran had been doing well, but about five days earlier he started having worsening symptoms starting in his back that went down his left leg. It was noted he had had an epidural steroid injection in the past with significant reduction in symptoms. Upon physical examination, there was pain on extension and rotation of the left side. Straight leg raising was positive on the left. No major neurological deficits were noted except for tingling dysesthesia in the left L5 distribution. An injection was recommended. VA treatment notes from April 2016 reflect the Veteran had a history of chronic lower back pain with radiation to the left leg. The Veteran requested an MRI for his low back pain. An April 2016 MRI revealed large disc protrusion centrally and to the left at the L5-S1 level compressing the left nerve root and obliterating the left intervertebral foramen. This caused spinal stenosis at that level on the left. The Veteran underwent a VA examination in May 2016 for his thoracolumbar spine condition. The VA examiner noted a diagnosis of left leg radiculopathy as a progression of his lumbosacral strain. At that time, the Veteran reported that in about May 2005 he began having more regular weakness down his left leg. Epidural injections became less effective over the years. A sensory exam revealed decreased sensation to light touch of the left foot/toes. Moderate left lower extremity paresthesias and/or dysesthesias, and severe numbness were noted. Deep tendon reflexes were normal. No pain was noted. Muscle strength testing was normal. The examiner found mild radiculopathy. A private neurosurgery consultation from June 2016 reflects the Veteran complained of low back pain with radiation into the left lower extremity. In the past, epidural injections provided good relief, but his symptoms gradually worsened. He described pain radiating into his left calf and experiencing some paresthesias over the lateral aspect of the left foot. Upon physical examination, the Veteran appeared uncomfortable but was not in acute distress. Straight leg raising test was unequivocal on the left. He had good motor strength throughout. The sensory examination revealed patchy decreased perception to pinprick and light touch over the distal left lower extremity. His reflexes were symmetrically diminished. A private pain clinic report from June 2016 reflects the Veteran complained of his low back pain and left lower extremity radiculitis posteriorly in an S1 distribution pattern. He reported it started 15 years earlier but had gotten worse recently. The Veteran described stinging, stabbing, and burning radiating into his left leg. He also had weakness in his left leg and burning and tingling in his foot. The frequency was constant, and it was made better with medications and worse with activity. The Veteran reported epidurals had been helpful for several months. He had also done some physical therapy but was not doing any at the time. A review of systems revealed tingling in his left leg, weakness in his left leg, muscle pain in his left leg, and joint swelling. Upon musculoskeletal examination, straight leg raising was positive on the left. There was no sacroiliac (SI) joint tenderness to palpation and there was a negative Patrick's test. The neurological examination revealed the Veteran had difficulty with both plantar and dorsiflexion at the left lower extremity. It was further noted "motor [was] four to five in left lower extremity most notable with plantar flexion. D3 sensation at the left lower extremity over the posterior aspect in an S1 distribution pattern." The Veteran was set up for a left S1 transforaminal epidural steroid injection and was given a physical therapy prescription. VA treatment notes from August 2018 indicate the Veteran complained of chronic lower back pain radiating to the left thigh, which was aggravated by sitting/prolonged standing. It was noted he had completed physical therapy and pain management. Similar notes were included in March and September of 2019. The Veteran underwent another VA examination in January 2020. The VA examiner indicated severe constant pain and severe paresthesias and/or dysesthesias of the left lower extremity. No numbness was noted. With respect to muscle strength, the Veteran's knee extension, ankle plantar flexion, and ankle dorsiflexion were four out of five. No muscle atrophy was noted. The Veteran's knee reflex was hypoactive. Sensation testing for light touch was normal. No trophic changes were noted. The examiner found moderately severe incomplete paralysis of the sciatic nerve. It was noted the Veteran occasionally used a cane for support. The examiner indicated the Veteran's peripheral nerve and/or peripheral neuropathy conditions interfered with running, jumping, climbing, squatting, kneeling, prolonged positioning, and executing skilled movements. He could perform strenuous activities if he could avoid his limitations. The Veteran reported he was unable to stand very long without some type of support and could not walk or exercise very long without pain and weakness. He reported weakness and loss of strength in his left leg caused him to fall on many occasions. VA Treatment notes from July 2020 indicate the Veteran had low back pain without "true radiation." It was noted the Veteran had low back pain going to the posterior left buttock and very proximal posterior thigh, not extending below the knee. The Veteran reported the pain was intermittent and occurred at times with prolonged standing or heavy work such as yard work. The physician noted the Veteran's low back pain without true radiation was "stable/doing well." Regarding impairment of motor functions, private treatment notes from July 2015 note mild weakness in dorsiflexion of his left great toe. A June 2016 neurosurgery consultation noted he had good motor strength throughout. A pain clinic note from later that month reflect the Veteran had difficulty with both plantar and dorsiflexion at the left lower extremity. It was noted, "[m]otor was four to five in the left lower extremity most notable with plantar flexion." With regard to trophic changes, the record does not reflect trophic changes. As to sensory disturbance, private treatment notes from June 2015 revealed tingling in the left foot and those from October 2015 indicated tingling dysesthesia in the left L5 distribution. The May 2016 VA sensory examination revealed decreased sensation to light touch of the left foot/toes. Moderate left lower extremity paresthesias and/or dysesthesias and severe numbness were noted. The June 2016 sensory examination performed as part of the private neurosurgery consultation revealed patchy decreased perception to pinprick and light touch over the distal left lower extremity. The June 2016 pain clinic report indicated that the Veteran described stinging, stabbing, and burning radiating into his left leg. He also had burning and tingling in his foot. The January 2020 VA examination documented severe paresthesias and/or dysesthesias of the left lower extremity. No numbness was noted. With regard to loss of reflexes, the May 2016 VA examination revealed normal deep tendon reflexes of the knee and ankle. The June 2016 private neurosurgery consultation noted diminished reflexes. The January 2020 VA examination revealed hypoactive left knee deep tendon reflexes and normal left ankle deep tendon reflexes. As to pain, a June 2015 telephone triage note reflected the Veteran reported pain radiating down his left leg. Private treatment notes from July 2015 reflected the Veteran had been doing well until three months earlier when he started having pain in his back and down his left leg. Upon physical examination, there was pain on extension and rotation to the left side. Follow up private treatment notes from October 2015 reflected that, upon physical examination, there was pain on extension and rotation of the left side. During a June 2016 private neurosurgery consult, the Veteran described pain radiating into his left calf. A June 2016 pain clinic note noted muscle pain in his left leg. The January 2020 VA examiner noted the Veteran suffered severe constant pain. As to muscle atrophy, the record does not include evidence of muscle atrophy. As to complete paralysis, the record does not include evidence of complete paralysis. Based on the above, the Board finds that the disability is primarily manifest by impairment of motor functions, 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 trophic changes, muscle atrophy, and complete paralysis. The Board thus finds that prior to January 15, 2020, the level of impairment is most analogous to moderate incomplete paralysis. The Board acknowledges that the May 2016 VA examiner described the Veteran's radiculopathy as "mild." However, pain was not noted as one of the Veteran's symptoms. As discussed above, the Veteran's treatment records document his complaints of pain. Additionally, private treatment records discussed the Veteran's impairment of motor function, which was not discussed in the May 2016 VA examination. The Board notes that the May 2016 examination was for the back and while it did discuss radiculopathy, a more detailed peripheral nerves conditions VA examination was not completed at that time. Considering the Veteran's symptoms, including moderate left lower extremity paresthesias and/or dysesthesias and severe numbness, the Board finds that a moderate rating is warranted prior to January 15, 2020. From January 15, 2020, the level of impairment is most analogous to moderately severe incomplete paralysis. Significant weight is afforded to the January 2020 VA examiner's assessment considering her medical expertise. The Board acknowledges the lay assertion of frequent falling. However, the medical evidence of record does not support that this symptom is one that the Veteran has suffered from regularly because of his radiculopathy. For example, VA treatment notes from April 2017, August 218, and September 2019 included a Morse fall scale score of zero and note the Veteran did not have a history of falling during the prior three months. While the Veteran reported frequent falling during his January 2020 VA examination, he reported using a cane only occasionally for support. The examiner found the Veteran's peripheral nerve and/or peripheral neuropathy conditions interfered with running, jumping, climbing, squatting, kneeling, prolonged positioning, and executing skilled movements. He could perform strenuous activities if he could avoid his limitations. Frequent falling was not noted as a concern by the examiner. The Board finds the medical evidence of record to be more probative than the Veteran's assertions regarding his symptom of falling considering the expertise of the January 2020 VA examiner and since the Veteran's statements are not supported by the medical evidence of record. In addition to the affirmative reports of no falls in the prior three months in April 2017, August 2018, and September 2019, more recent treatment records from June 2020 indicated the Veteran reported pain was intermittent and occurred at times with prolonged standing or heavy work such as yard work. The physician noted the Veteran's low back pain without true radiation was "stable/doing well." There was no mention of falling. 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 evidence of record warrants an increased rating of 20 percent, but not higher, prior to January 15, 2020, and 40 percent, but not higher, thereafter for left lower extremity radiculopathy. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.