Citation Nr: 22017413 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-36 127 DATE: March 25, 2022 ORDER Entitlement to an evaluation of 20 percent, but no higher, for right lower extremity radiculopathy is granted. FINDING OF FACT The Veteran's right lower extremity radiculopathy has manifested in moderate symptoms; he has only sciatic nerve right lower extremity radiculopathy. CONCLUSION OF LAW The criteria for entitlement to an evaluation of 20 percent, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code (Code) 8720 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1992 to February 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision by the Department of Veterans Affairs (VA). This case was remanded in March 2020 for further development. In February 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. After the Board's remand, the agency of original jurisdiction (AOJ) granted the issue of service connection for left lower extremity radiculopathy. See October 2020 rating decision. Because that decision represents a full grant of the benefits sought, the issue is no longer on appeal. The Board notes that VA has waived any claims processing rules for the issue currently before the Board. See generally Henderson v. Shinseki, 562 U.S. 428 (2011); Hall v. McDonough, 34 Vet. App. 329 (2021). Entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 2021 U.S. App. LEXIS 37307, No. 2020-2067 (Fed. Cir., Dec. 17, 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The words "mild," "moderate," and "severe" as used in the various Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The Veteran's right lower extremity radiculopathy is currently rated at 10 percent pursuant to Code 8720, which is for neuralgia of the sciatic nerve. Code 8720 uses the same rating criteria as Code 8520, which is for paralysis of the sciatic nerve. Pursuant to that Code, a 10 percent rating is assigned for incomplete paralysis manifesting in mild symptoms. A 20 percent rating is assigned for incomplete paralysis manifesting in moderate symptoms. A 40 percent rating is assigned for incomplete paralysis manifesting in moderately severe symptoms. A 60 percent rating is assigned for incomplete paralysis manifesting in severe symptoms. Finally, a maximum 80 percent rating is assigned for complete paralysis where the foot dangles and drops, there is no active movement possible of the muscles below the knee, or flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. In July 2017 VA treatment records, the Veteran reported having periodic radiation down the right leg to his foot. The pain used to be less frequent, but he noticed them almost daily now. They could occur while he was driving or walking and would be electric. Within a few seconds to minutes after changing his position, the pain would perhaps go away completely. In December 2017 and August 2018 VA treatment records, the Veteran reported intermittent radiation into his right leg with associated numbness. In February 2020, the Veteran testified about constant pain shooting down his leg that slowed him down. It affected his job and other things that he did on a day to day basis. He reported a steady pain for the past four years, and before that the pain was on and off. During a March 2020 VA examination, the Veteran reported intermittent pain radiating from his back to his leg with numbness and tingling. His symptoms limited his ability to stand and ambulate for extended periods. It appears that the examiner did not describe the severity of the condition because the Veteran has radiculopathy and not a peripheral nerve condition, but the examiner diagnosed "moderate" femoral and sciatic nerve radiculopathy. When confronted with the March 2020 VA examiner's contradictory findings regarding the Veteran's radiculopathy, an October 2020 VA examiner reviewed the file and opined the March 2020 VA examiner's diagnosis of femoral radiculopathy was in error as there were no objective findings of femoral radiculopathy. The examiner also opined that the Veteran's sciatic nerve radiculopathy was mild. After reviewing the evidence of record, the Board finds that the Veteran's symptoms are moderate in nature. Although he reported constant pain that limited his ability to stand and ambulate, the symptoms overall appear to be not pervasive or significant such that the effects have a moderately severe or severe impact on his daily functioning. The Board assigns significant weight to the March 2020 VA examiner's diagnosis of "moderate" sciatic nerve radiculopathy. A finding of moderate symptoms is consistent with the Veteran's report of constant symptoms that had some impact on his day to day living. The Board has considered the Veteran's reports throughout the appeal period and finds that the evidence more closely approximates criteria for moderate symptoms because his reports reflect pain and numbness that do not have more than a moderate impact on his daily functioning. Indeed, it does not appear that the Veteran's radiculopathy has more impact than a limited ability to stand and walk and he retains use of his foot. Thus, the symptoms are not pervasive or significant enough to more closely approximate moderately severe symptoms. The Board has considered whether the Veteran is entitled to a higher rating pursuant to a different Code. Codes 8520 and 8620, for incomplete paralysis of the sciatic nerve and neuritis of the sciatic nerve, respectively, use the same criteria. Thus, a higher rating pursuant to a different Code for sciatic nerve radiculopathy is not warranted. The Board notes that the March 2020 VA examiner diagnosed femoral nerve radiculopathy. The examiner also noted that there was no diagnostic testing done for the examination. After review of the file, the October 2020 VA examiner opined that the diagnosis was in error and there was no objective evidence of femoral nerve radiculopathy. The Board finds the October 2020 VA medical opinion to be adequate for appellate review. The examiner relied on review of the file, and he provided a rationale that included discussion of the Veteran's diagnosed disabilities of record. The opinion is supported by the other evidence of record, which only reflects sciatic nerve radiculopathy. See, e.g., January 2015 VA treatment records. To the extent that the Veteran's lay reports can be interpreted to be assertions of femoral radiculopathy, they are given no probative weight because the Veteran is not competent to opine on the type of radiculopathy that he has. The Board assigns more probative weight to the October 2020 VA examiner's finding than the March 2020 VA examiner's diagnosis because the former is supported by the other evidence of record. The October 2020 VA examiner did not provide a basis for the diagnosis or provide why such diagnosis was made; thus, the diagnosis is assigned extremely little probative weight. As a result, the October 2020 VA opinion and VA treatment records persuasively outweigh the singular diagnosis of femoral radiculopathy and the Veteran is found to not have femoral nerve radiculopathy. Thus, a separate rating is not warranted. In conclusion, the Veteran is entitled to a rating of 20 percent, but no higher, for right lower extremity radiculopathy, and the matter is granted. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.