Citation Nr: 22015067 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 16-27 582A DATE: March 16, 2022 ORDER Entitlement to an initial increased rating in excess of 10 percent for right lower extremity radiculopathy prior to September 21, 2020, is denied. Entitlement to an increased rating of 20 percent, but no higher, for right lower extremity radiculopathy from September 21, 2020, is granted. FINDINGS OF FACT 1. Prior to September 21, 2020, the Veteran's right lower extremity radiculopathy was manifest by no more than mild incomplete paralysis 2. From September 21, 2020, the Veteran's right lower extremity radiculopathy is manifest by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial increased rating in excess of 10 percent for right lower extremity radiculopathy prior to September 21, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to an increased rating of 20 percent, but no higher, for right lower extremity radiculopathy from September 21, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Army from April 1992 to January 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim for an increased rating in excess of 10 percent for right lower extremity radiculopathy was denied by the Board in a May 2021 decision which was subsequently appealed by the Veteran to the United States Court of Appeals for Veterans Claims (Court). The Court granted a Joint Motion for Partial Remand (JMPR) in December 2021. The Court's order vacated the portion of the May 2021 decision of the Board which denied a disability rating in excess of 10 percent for right lower extremity radiculopathy. The case was returned to the Board for readjudication consistent with the Court's order. 1. Entitlement to an initial increased rating in excess of 10 percent for right lower extremity radiculopathy prior to September 21, 2020 2. Entitlement to an increased rating of 20 percent, but no higher, for right lower extremity radiculopathy from September 21, 2020 The Veteran contends that the severity of his right lower extremity radiculopathy symptoms warrants a higher evaluation. Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 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 service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's right lower extremity radiculopathy is evaluated under Diagnostic Code 8520, paralysis of the sciatic nerve. 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 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 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). After careful consideration of the evidence of record, the Board concludes that prior to September 21, 2020, the evidence persuasively weighs against a rating in excess of 10 percent, and thereafter the evidence persuasively favors a rating of 20 percent, but no higher, for right lower extremity radiculopathy. The Veteran's medical evidence does not demonstrate the presence of right lower extremity radiculopathy until June 2016 when a VA examiner opined that the Veteran at least as likely as not has an ongoing diagnosis of right lower extremity as a September 2014 MRI revealed bilateral foraminal stenosis which means that the nerves are being pressured in the foramina. The examiner noted that pressure in the foramina causes radiculopathy symptoms in the legs. In June 2011, during a VA examination, the Veteran only reported weakness and pain of the left leg and foot. The examiner opined that the neurological examination revealed a sensory deficit in the left lower extremity only, and assessed the Veteran with a peripheral nerve condition of the sciatic nerve affecting the left side of the body. The Veteran underwent a nerve conduction study in August 2011; however, there was no evidence involving the right lower extremity in the electromyographic report, only left lower extremity radiculopathy was documented. During the May 2016 VA examination, the Veteran only reported sharp pain down his left leg. The examiner did not find any signs or symptoms of radiculopathy on the right lower extremity. Significantly, the Veteran's lay statements of record do not include complaints of right lower extremity radiculopathy until the June 2016 VA Form 9, when the Veteran stated that "...they forgot my right," when referring to his left leg radiculopathy evaluation. Prior to this filing, the Veteran did not specifically refer to symptoms related to his right lower extremity radiculopathy. In the January 2014 notice of disagreement, the Veteran stated that the most disabling part of his nerve damage is the numbness and pain, and that these symptoms are constant, relentless, and ever present. In an April 2014 statement in support of claim, the Veteran stated that his leg pain is moderately severe, as his walking ability is strictly limited. However, in these two statements, the Veteran did not specify which leg he was referring to. Based on the objective and subjective medical and lay evidence of record, the Board concludes that the Veteran was more likely than not referring only to the left lower extremity. In July 2017 correspondence, the Veteran stated that his sciatica pain on the right side is nearly equal to the pain on his left side. While describing his left leg radiculopathy, he stated that his pain is excoriating and debilitating leaving him bedridden and unable to perform activities of daily living. However, a September 2019 VA examiner opined that the Veteran's right radiculopathy symptoms, including intermittent pain, paresthesias and/or dysesthesias, and numbness were of mild severity compared to a July 2019 examiner who opined that the Veteran's left leg radiculopathy symptoms were moderately severe. Based on the above, the Board finds that prior to September 21, 2020, the Veteran's right lower extremity radiculopathy is primarily manifest by pain and numbness of only mild severity. As previously determined, the Veteran's objective and subjective medical and lay records do not include any complaints related to the right leg radiculopathy until June 2016 when a VA examiner opined that the evidence indicates that the Veteran has a diagnosis of right lower extremity radiculopathy. Although, the Veteran complained of leg pain in January and April 2014, he did not specify which leg he was referring to. In June 2017, he stated that his right leg radiculopathy was nearly equal to his left leg radiculopathy; however, the evidence does not include any complaints related specifically to the Veteran's right leg until June 2016 and the objective medical evidence does not reveal any signs or symptoms of the right leg until September 2019 when the examiner opined that his symptoms were of "mild severity." Accordingly, the Board finds that entitlement to an increased rating in excess of 10 percent prior to September 21, 2020 is not warranted. On September 21, 2020, the Veteran was again afforded another VA examination. The Veteran stated that he has flare-ups of his back condition monthly that include radiation down both his legs with a sensation of sharp, burning pain. The examiner opined that the Veteran's signs and symptoms of radiculopathy include intermittent pain of moderate severity involving the sciatic nerve of the right lower extremity. Based on this examination report, the Board finds that the evidence persuasively favors an increased rating of 20 percent for the right lower extremity from September 21, 2020, under Diagnostic Code 8520. The September 2020 VA examination demonstrated that the Veteran's right lower extremity is manifest by moderate incomplete paralysis. Accordingly, entitlement to an increased rating of 20 percent, but no higher, for right lower extremity radiculopathy from September 21, 2020, is warranted. 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 VA examinations and private medical reports indicate that the Veteran's symptoms are related to the sciatic nerve, for which he is service connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.