Citation Nr: 22014251 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-20 677 DATE: March 11, 2022 ORDER Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy, femoral nerve, is denied. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy, femoral nerve, prior to December 1, 2021, is denied Entitlement to a rating of 20 percent, but no higher, for right lower extremity radiculopathy, femoral nerve, from December 1, 2021, is granted. FINDINGS OF FACT 1. The Veteran's left lower extremity femoral nerve radiculopathy is manifest by symptoms most consistent with moderate severity throughout the appeal period. 2. Prior to December 1, 2021, the Veteran's right lower extremity femoral nerve radiculopathy was manifest by symptoms most consistent with mild severity. 3. The Veteran's right lower extremity femoral nerve radiculopathy is manifest by symptoms most consistent with moderate severity from December 1, 2021. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left lower extremity radiculopathy, femoral nerve, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 2. Prior to December 1, 2021, the criteria for a rating in excess of 10 percent for right lower extremity radiculopathy, femoral nerve, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526 3. The criteria for a rating of 20 percent, but no higher, for right lower extremity radiculopathy, femoral nerve, from December 1, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from September 1971 to May 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in February 2021, and a transcript of this hearing is associated with the claims file. These matters were previously before the Board in July 2021, at which time it was remanded for additional development. The Board notes that there are additional issues pending development, which will be addressed separately, as the Veteran opted these issues into the AMA appeals system. Increased Ratings Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity.38U.S.C. §1155 ;38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disabilities may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West,12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38C.F.R. §4.7. 1. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy, femoral nerve, is denied. 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy, femoral nerve, prior to December 1, 2021, is denied 3. Entitlement to a rating of 20 percent, but no higher, for right lower extremity radiculopathy, femoral nerve, from December 1, 2021, is granted. The Veteran contends that he is entitled to higher ratings for his bilateral femoral nerve radiculopathy because he experiences what he describes as severe pain and paralysis in his thighs. Paralysis of the anterior crural (femoral) nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the femoral nerve with complete paralysis of quadriceps extensor muscles is rated as 40 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 Veteran underwent VA peripheral nerve examinations in April 2015, April 2018, and December 2021. The April 2015 and April 2018 VA back examinations and January 2015 hip and thigh examination also evaluated the Veteran's lower extremity radiculopathy. Regarding pain, the April 2015 peripheral nerve and back examinations both note the Veteran experienced moderate intermittent pain in his left leg, and the back examination also noted moderate numbness in his left leg. Additionally, this back examination found the Veteran's left femoral radiculopathy was of a moderate severity. In the April 2018 peripheral nerve examination, the Veteran had mild intermittent pain and paresthesias/dysesthesias, while the April 2018 back examination did not note radiculopathy in either leg related to the femoral nerve. The December 2021 peripheral examination found the Veteran had moderate intermittent pain, mild paresthesias/dysesthesias, and mild numbness in both legs. Regarding loss of reflexes, the April 2015 examination found the Veteran's reflexes were all normal, though he had decreased sensation in his left upper anterior thigh and left thigh and knee. The April 2018 examination noted the Veteran's bilateral ankle reflexes were hypoactive. Additionally, this examination found his bilateral lower leg and ankle and bilateral foot and toes had decreased sensation. The December 2021 examination found the Veteran's left ankle and right knee reflexes were hypoactive. He also had decreased sensation in his bilateral upper anterior thighs, left thigh and knee, and right lower leg, ankle, foot, and toes. The December 2021 examination also noted trophic changes of loss of hair and shin skin from the calf down on both legs. Regarding muscle atrophy and complete paralysis, none of the VA examinations indicated the Veteran had any muscle atrophy or complete paralysis. During his February 2021 hearing testimony, the Veteran stated that he experienced pain in his lower back that radiates down into his thighs that he described as "extreme" and feeling like "pins and needles" that he said was near constant. The Veteran also described experiencing paralysis in his legs in addition to the pain radiating down from his low back. Based on the above, the Board finds that the Veteran's bilateral femoral nerve radiculopathy is primarily manifest by pain, sensory disturbance, and loss of reflexes throughout the majority of the appeal period, with trophic changes being noted in December 2021. However, while the left leg femoral nerve radiculopathy was manifest by symptoms of a moderate severity for the entirety of the appeal period, warranting the 20 percent rating currently assigned, the right leg femoral radiculopathy was manifest by no more than mild symptoms prior to December 1, 2021, and by moderate symptoms from that date forward. Thus, a rating of 20 percent for moderate incomplete paralysis of the right femoral nerve is warranted as of December 2021; however, prior to that date, a rating in excess of 10 percent for right lower extremity radiculopathy of the femoral nerve is not warranted. While the Board acknowledges the Veteran's description of experiencing pain and what he called "paralysis" during his February 2021 hearing testimony, the medical evidence of record, including the in-person December 2021 VA examination, does not indicate the Veteran's pain due to radiculopathy of the femoral nerves is more than a moderate level, nor is he experiencing complete paralysis. The Veteran is competent and credible with respect to reporting the symptoms that he experiences; however, he lacks the training to opine on the severity of his condition from a medical standpoint. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). 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. The Board notes in this connection that the Veteran is currently separately service connected for radiculopathy affecting the femoral nerves, on appeal herein, as well as radiculopathy affecting the external cutaneous nerves and the sciatic nerves. No Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for left lower extremity femoral nerve radiculopathy. Additionally, the Board finds that the evidence of record persuasively weighs in favor of a rating of 20 percent, but no higher, for right lower extremity femoral nerve radiculopathy from December 1, 2021.Prior to that date, the evidence persuasively weighs against a rating in excess of 10 percent for right lower extremity femoral nerve radiculopathy. As the evidence of record persuasively weighs against the granting of any ratings higher than those assigned herein, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.