Citation Nr: 22018635 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 16-39 128 DATE: March 30, 2022 ORDER Entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity prior to December 28, 2010, is denied. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity from December 28, 2010, to December 18, 2021, is denied. Entitlement to a disability rating of 40 percent for radiculopathy of the left lower extremity on or after December 19, 2021, is granted. FINDINGS OF FACT 1. Prior to December 28, 2010, the Veteran's radiculopathy of the left lower extremity is best characterized as mild incomplete paralysis of the sciatic nerve. 2. From December 28, 2010, to December 19, 2021, the Veteran's radiculopathy of the left lower extremity manifested as intermittent pain and numbness and is best characterized as moderate incomplete paralysis of the sciatic nerve. 3. From December 19, 2021, the Veteran's radiculopathy of the left lower extremity has been manifested by symptomatology that is not just sensory and is best characterized as moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity prior to December 28, 2010, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to a disability rating in excess of 20 percent for radiculopathy of the left lower extremity from December 28, 2010, to December 19, 2021, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520. 3. The criteria for entitlement to a disability rating of 40 percent for radiculopathy left lower extremity from December 19, 2021, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1969 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2021 and December 2021, when it was remanded for further development. That development has been completed, and the case has been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. 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). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). The Veteran is currently assigned a 10 percent evaluation prior to December 28, 2010, and a 20 percent evaluation from December 28, 2010, for radiculopathy of the left lower extremity pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. 38 C.F.R. § 4.124a, Diagnostic Code 8520 pertains to paralysis of the sciatic nerve. Under Diagnostic Code 8520, paralysis of the sciatic nerve is rated as follows: complete paralysis in which the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost (80 percent); severe incomplete paralysis with marked muscular atrophy (60 percent); moderately severe incomplete paralysis (40 percent); moderate incomplete paralysis (20 percent); and mild incomplete paralysis (10 percent). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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 only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The words "slight," "mild," "moderate," and "severe" as used in the various diagnostic codes 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. 38 C.F.R. § 4.6. Prior to December 28, 2010 In a February 2018 rating decision, the Veteran was awarded a 10 percent disability rating for radiculopathy of the left lower extremity effective September 1, 2009, the date a VA examination showed entitlement to a compensable evaluation. At this time, the Veteran reported that his low back pain sometimes radiated down to the left leg and has gotten progressively worse. The examiner diagnosed the Veteran with left lumbar radiculopathy of mild severity. The record demonstrates that from September 1, 2009, to December 27, 2010, the Veteran's radiculopathy of the left lower extremity does not warrant a rating in excess of 10 percent. The evidence of record does not demonstrate manifestations consistent with moderate, moderately severe, or complete paralysis radiculopathy of the left lower extremity. The evidence of record does not indicate that the Veteran had muscle atrophy, abnormal muscle tone or bulk, complete paralysis, organic changes, or foot drop of the left lower extremity. Based on the foregoing, the evidence demonstrates that from during this time period, the Veteran had no more than mild incomplete paralysis. The Board acknowledges that during this period, the Veteran asserted he experienced radiating pain down his left leg. However, the objective evidence of record does not indicate more than mild radiculopathy and a higher rating requires moderate incomplete paralysis. As such, the record does not support a finding the Veteran's left lower extremity radiculopathy was more than mild from September 1, 2009, to December 27, 2010. From December 28, 2010, to December 18, 2021 In the February 2018 rating decision, the Veteran was assigned a 20 percent evaluation for his radiculopathy of the left lower extremity, the date of the claim for an increased evaluation. In April 2010, the Veteran reported having weakness associated with his back pain, including buckling of his left knee. During a May 2010 VA examination, the Veteran reported radiation of back pain to the left lower extremity and that at times the pain caused weakness or fatigue of the left lower extremity. The examiner noted that the Veteran had low back pain that radiated to the lower extremities that results in decreased strength of the lower extremity. The Veteran was also afforded a VA examination in July 2013. At this time, the Veteran's muscle strength testing was normal, and it was not shown that the Veteran had muscle atrophy. The Veteran's reflex examination was normal, and his sensory examination was decreased for his left foot/toes. The examiner opined that the Veteran had radicular pain/other signs or symptoms due to radiculopathy, including severe left lower extremity intermittent pain, paresthesias and/or dysesthesias, and numbness in the sciatic nerve. The examiner characterized the Veteran's radiculopathy as being moderate in severity. May 2019 VA treatment records show that the Veteran experienced lumbar radiculopathy, specifically pain that radiates down his left leg. Further, VA treatment records dated November 2019 note that the Veteran experienced a worsening in his lumbar radiculopathy. The Veteran was afforded a VA examination for his back condition in November 2020. The examiner noted that the Veteran's muscle strength testing, sensory examination and reflex examination were all normal. The Veteran was observed to have radicular symptoms of the left lower extremity, including moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness affecting the sciatic nerve. The examiner determined that the severity of the Veteran's radiculopathy could best be characterized as moderate. During a July 2021 VA examination for his back condition, the examiner noted that the Veteran's muscle strength testing was normal, and he had no muscle atrophy. Further, his reflex examination was normal, and his sensory examination decreased for his left foot/toes. The examiner noted that the Veteran had radicular pain/signs or symptoms of radiculopathy of the left lower extremity, including moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the sciatic nerve. Based on the evidence described above, the Board finds that his radiculopathy of the left lower extremity warrants a rating of 20 percent, but no more, from December 28, 2010, to December 18, 2021. The VA examinations completed during this time noted multiple symptoms of moderate severity in the lower left extremity. The examining physicians also noted muscle strength and reflexes as being normal in the lower left extremity. Further, the July 2013 and May 2019 VA examiners also found that the Veteran's left lower extremity radiculopathy to be of moderate severity. Therefore, this is collectively indicative of incomplete paralysis of no more than moderate severity. The Board therefore finds that from December 28, 2010, to December 18, 2021, a 20 percent evaluation is warranted for his radiculopathy of the left lower extremity. From December 19, 2021 The Veteran was afforded a VA examination in December 2021, where the examiner noted that the Veteran's radiculopathy of the left lower extremity has worsened over time. At this time, the Veteran reported increased radiating pain, numbness, and tingling down his left leg as well as associated leg weakness. The Veteran stated that he attended several physical therapy sessions and his medications have been increased over time, but his symptoms continue to worsen. The examiner noted that the Veteran's left lower extremity symptoms include severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. The Veteran was noted to have reduced muscle strength in the left lower extremity but did not have muscle atrophy. The Veteran's reflex examination was normal, but his sensory examination was decreased for the left lower leg and ankle as well as his left foot and toes. The Veteran did not have trophic changes or an abnormal gait. The examiner concluded that the Veteran had moderately severe incomplete paralysis of the left sciatic nerve. The examiner also observed that the Veteran regularly uses a walker for his bilateral lower extremity radiculopathy. The evidence in this case shows that from December 19, 2021, the Veteran's radiculopathy has been manifested by symptomatology that is not just sensory. The December 2021 VA examiner noted that the Veteran has severe radicular symptoms, decreased muscle strength, and observed the fact that the Veteran regularly uses a walker due to his lower extremity radicular symptoms. Further, the examiner characterized the Veteran's incomplete paralysis as being moderately severe. The next higher rating of 60 percent is warranted if the evidence shows severe incomplete paralysis, with marked muscular atrophy. While the Veteran's symptoms are severe in nature, the Board also finds that the evidence of record is against a finding that the disability is manifested by marked muscular atrophy. As noted above, muscle atrophy was not shown during the December 2021 VA examination. The Board thus finds that the level of impairment is most analogous to moderately severe incomplete paralysis. Thus, from December 19, 2021, the evidence supports a disability rating of 40 percent for his left lower extremity radiculopathy. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.