Citation Nr: 22015112 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-26 039 DATE: March 16, 2022 ORDER Entitlement to a disability rating greater than 10 percent for radiculopathy of the right lower extremity prior to June 12, 2017, is denied. Entitlement to a disability rating greater than 20 percent for radiculopathy of the right lower extremity from June 12, 2017, to November 5, 2021, is denied. Entitlement to a disability rating greater than 40 percent for radiculopathy of the right lower extremity from November 6, 2021, is denied. FINDINGS OF FACT 1. The Veteran's radiculopathy of the right lower extremity is manifest by no more than mild paralysis prior to June 12, 2017. 2. The Veteran's radiculopathy of the right lower extremity is manifest by no more than moderate paralysis from June 12, 2017, to November 5, 2021. 3. The Veteran's radiculopathy of the right lower extremity is manifest by no more than moderately severe paralysis from November 5, 2021. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for right lower extremity radiculopathy have not been met prior to June 12, 2017. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2020). 2. The criteria for a disability rating greater than 20 percent for right lower extremity radiculopathy have not been met from June 12, 2017, to November 5, 2021. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2020). 3. The criteria for a disability rating greater than 40 percent for right lower extremity radiculopathy have not been met from November 6, 2021. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training in the United States Army National Guard from June 1974 to October 1974 and on active duty in the U.S. Army from January 1975 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in November 2016 seeking a 40 percent rating. A Statement of the Case (SOC) was issued in January 2017. The Veteran perfected an appeal by submitting a timely VA Form 9 in May 2017. The issue was previously before the Board. Most recently in September 2021, the Board remanded the appeal to the RO for additional development. Specifically, the Board directed the RO to obtain a clarifying medical opinion on whether the Veteran's right lower extremity radiculopathy of the Veteran's sciatic nerve reflects "mild," "moderate," "moderately severe," or "severe" incomplete paralysis. In November 2021, the Veteran was afforded a VA examination for his right lower extremity radiculopathy clarifying the severity of the Veteran's right lower extremity radiculopathy, and was granted a 40 percent rating effective November 6, 2021. Thus, the Board finds that the AOJ substantially complied with the remand directives and no further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Factual Background The Veteran is in receipt of a 10 percent rating for right lower extremity radiculopathy from January 18, 2013, a 20 percent rating from June 12, 2017, and a 40 percent rating from November 6, 2021. Combined, he is in receipt of a 90 percent rating from November 6, 2021, and a total disability rating based on individual unemployability from July 31, 2014. The Veteran was also in receipt of a temporary 100 percent rating from November 25, 2017, to December 31, 2016. On August 20, 2014, the Veteran underwent MRI for his spine. The impressions were degenerative discogenic disease at L3/L4 to L5/S1, mild to moderate multifactorial spinal canal narrowing at L4/L5, and moderate neuroforamina narrowing at L4/L5 and L5/S1. In February 2015, the VA examiner found that the Veteran had mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in his right lower extremity. The examiner indicated that the Veteran's right lower extremity radiculopathy was caused by the involvement of the sciatic nerve and that it was "mild." The Veteran reported the use of a back brace and cane and reported limited standing endurance because of his lumbar spine disorder but not specifically because of lower extremity intermittent pain and numbness. In January 2016, the Veteran was afforded a VA examination for his back. In pertinent part, the examiner found that the Veteran had mild numbness in the left lower extremity but no symptoms of radiculopathy in the right lower extremity. In a July 2016 addendum opinion, the examiner added that the Veteran had findings of mild weakness and reflex change attributable to intervertebral disc syndrome (IVDS) in the right lower extremity. The Veteran again reported limited sitting and standing endurance because of low back pain but not because of lower extremity symptoms. In June 2017, a VA examiner noted that the Veteran had moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner indicated that the Veteran's right lower extremity radiculopathy was caused by the involvement of the sciatic nerve and that it was "moderate." The Veteran did not have muscle atrophy. On December 17, 2019, the Veteran was afforded a VA examination for his right lower extremity radiculopathy. The examiner observed moderately severe incomplete paralysis of the right lower extremity with moderate incomplete paralysis caused by the external popliteal nerve, musculocutaneous nerve, anterior tibial nerve, internal popliteal nerve, and posterior tibial nerve. The examiner opined that the listed nerves were "affected by the Veteran's bilateral lumbar radiculopathy" and stated that the findings were supported by the MRI findings from August 20, 2014. However, the examiner opined that the sciatic nerve was the "mother nerve proximal to all these other nerves and the sciatic nerve divides into these other nerves distally so if the sciatic nerve is affected [it is] going to affect the rest of these nerves." The examiner also opined that the severity of the Veteran's right lower extremity radiculopathy was "moderate" as there was no loss of strength and as his symptoms were "subjective sensory symptoms with objective findings of right lumbar radiculopathy as evidenced by his positive straight leg raising test and right sciatic notch tendencies." The Veteran reported standing and stretching for 10 to 30 minutes relieved moderate flare-up pain. The examiner observed a normal gait. He reported difficulty picking up objects on the floor and again reported limited standing and sitting endurance. In November 2021, the Veteran was afforded a VA examination for his right lower extremity radiculopathy. The Veteran reported that his symptoms have progressed or worsened since the last VA examination. The examiner noted an abnormal gait favoring the left leg that had greater pain. The use of the cane was noted as caused by the radiculopathy. The Veteran reported impairment in bending, lifting, prolonged walking and stair climbing. The examiner observed moderate intermittent pain, moderate paresthesias, and moderate numbness in the right lower extremity with no muscle atrophy. The examiner also found moderate incomplete paralysis of the external popliteal nerve, musculocutaneous nerve, anterior tibial nerve, internal popliteal nerve, and posterior tibial nerve. There was no muscle atrophy and no trophic changes, but the Veteran had abnormal gait due to "gravitational forces on the sciatic nerve." The examiner opined that the "condition has progressed and ... both sciatic nerves are affected at a moderate level." Later in the same month, the RO issued a rating decision granting a 40 percent rating effective November 6, 2021, the date of the VA examination above. Although the November 2021 VA examiner did not find that the Veteran's radiculopathy was moderately severe, the RO still found that the Veteran's radiculopathy was "moderately severe incomplete paralysis" and assigned a 40 percent rating. VA Medical Center treatment records during the period on appeal do not note any symptoms of right lower extremity radiculopathy that is contrary to the VA examinations of record. 1. Entitlement to a disability rating greater than 10 percent for radiculopathy of the right lower extremity prior to June 12, 2017 The Veteran contends that he is entitled to a rating greater than 10 percent for radiculopathy of the right lower extremity prior to June 12, 2017. The Veteran was in receipt of a 10 percent rating from January 18, 2013, and a 20 percent rating from June 12, 2017, under 38 C.F.R. § 4.124a, Diagnostic Code 8520, paralysis of the sciatic nerve. After reviewing the evidence of record, the Board finds that the weight of the evidence is against finding that the Veteran's right lower extremity radiculopathy warrants a rating greater than 10 percent prior to June 12, 2017. The Veteran's right lower extremity radiculopathy is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, paralysis of the sciatic nerve. Incomplete paralysis of the sciatic nerve is rated at 10 percent for mild paralysis, 20 percent for moderate paralysis, 40 percent for moderately severe paralysis, and 60 percent for severe paralysis with marked muscular atrophy. The words "mild," "moderate," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, DCs 8510-8730. As discussed above, there is no evidence of record that the Veteran had more than mild right lower extremity radiculopathy prior to June 12, 2017. It was not until June 12, 2017, that the Veteran reported moderate symptoms with both the February 2015 and July 2016 VA examinations showing that the Veteran had mild symptoms. The Board assigns great probative weight to the February 2015 VA examination finding that the Veteran had "mild" right lower extremity radiculopathy as there are no medical records to the contrary until the VA examination on June 12, 2017. Regarding functional impairment, the Veteran's limitations in extended walking and sitting were primarily reported as caused by lower back pain. He was able to ambulate and not precluded from activities in or out of the home. For the foregoing reasons, the weight of the evidence reflects that the criteria for a rating greater than 10 percent rating for the Veteran's service-connected right lower extremity radiculopathy have not been met or more nearly approximated prior to June 12, 2017. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a disability rating greater than 20 percent for radiculopathy of the right lower extremity from June 12, 2017, to November 5, 2021 3. Entitlement to a disability rating greater than 40 percent for radiculopathy of the right lower extremity from November 6, 2021 The Veteran contends that he is entitled to a rating greater than 20 percent for radiculopathy of the right lower extremity since June 12, 2017. As discussed above, the Veteran was granted a 40 percent rating effective November 6, 2021, and had specifically asked for a 40 percent rating in his November 2016 NOD. Although the Veteran did not ask for a rating greater than 40 percent, the Board will still consider whether the Veteran is entitled to a rating greater than 40 percent from November 6, 2021, as the VA examinations show that the Veteran's symptoms have progressed since the filing of his November 2016 NOD. As an initial matter, the Board finds that while the Veteran has incomplete paralysis of the right lower extremity due to the sciatic nerve as opined by the December 2019 VA examiner. As such, assignment of separate ratings for the involvement of the other nerves would be impermissible pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). After reviewing the evidence of record, however, the Board finds that the evidence weighs against finding that the Veteran is entitled to a rating greater than 20 percent for radiculopathy of the right lower extremity prior to November 6, 2021, and against finding that the Veteran is entitled to a rating greater than 40 percent at any period on appeal. As discussed above, prior to November 6, 2021, there is no medical evidence of record showing that the Veteran has more than moderate symptoms of right lower extremity radiculopathy, with the VA examination in June 2017 noting that the Veteran did not have muscular atrophy and therefore showing that the involvement of the nerves was wholly sensory. For the foregoing reasons, the evidence reflects that the criteria for a rating greater than 20 percent from June 12, 2017, to November 5, 2021, for the Veteran's service-connected radiculopathy of the right lower extremity have not been met or more nearly approximated. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Likewise, from November 6, 2021, there is no medical evidence of record showing that the Veteran has more than moderately severe symptoms of right lower extremity radiculopathy. Again, the Board notes that on November 6, 2021, the VA examiner found that the Veteran's symptoms were moderate, not moderately severe. However, as the Veteran's disability has unmistakably worsened and started affecting the Veteran's gait, and that an examiner found the use of a cane necessary for lower extremity pain and weakness, the Board resolves doubt in favor of the Veteran and finds that the involvement of the nerves is no longer "wholly sensory," meeting the criteria for a "moderately severe" rating. Again, there is no medical evidence supporting a "severe paralysis with marked muscular atrophy" as muscle atrophy has never been observed in the Veteran. However, the Veteran remains able to ambulate in or out of the home. There was no report of an inability to drive an automobile. For the foregoing reasons, the evidence reflects that the criteria for a rating greater than 40 percent rating for the Veteran's service-connected right lower extremity radiculopathy have not been met or more nearly approximated at any time on appeal. The benefit-of-the-doubt-doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.