Citation Nr: 22018953 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-07 761 DATE: March 30, 2022 ORDER Entitlement to an initial rating in excess of 10 percent for neurologic manifestations of the Veteran's service-connected low back disability based on radiculopathy of the right lower extremity is denied. FINDING OF FACT The Veteran's radiculopathy of the right lower extremity had mild incomplete paralysis for the entire period on appeal. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for neurologic manifestations of the Veteran's service-connected low back disability based on radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from May 1992 to October 1999. This matter originally came before the Board of Veterans' Appeals (Board) from a July 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional office (RO). In September 2019, the Board granted entitlement to an initial, separate, disability rating of 10 percent for radiculopathy of the right lower extremity. The Board concurrently remanded the instant issue of entitlement to an increased initial disability rating for neurologic manifestations of the Veteran's service-connected low back disability, rated as 10 percent disabling based on radiculopathy of the right lower extremity, for further development and adjudicative action. The Board remanded this issue again in August 2021 to give the Veteran the opportunity to submit outstanding private treatment records. The Board notes the Veteran did not respond to VA's request to complete a VA Form 21-4142 for any private medical records. Increased Ratings Disability ratings are based on the average impairment of earning capacity resulting from disability. 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 evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when 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, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. 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. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The Board notes that the terms "mild," "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. Entitlement to an initial rating in excess of 10 percent for neurologic manifestations of the Veteran's service-connected low back disability based on radiculopathy of the right lower extremity. Having carefully considered the Veteran's lay contentions in light of the evidence of record and the applicable law, the Board finds that the overall evidence shows that the Veteran's disability meets the 10 percent disability rating for the entire period on appeal. The Veteran is currently rated as 10 percent disabled beginning March 31, 2014, under 38 C.F.R. § 4.124a, Diagnostic Code 8520, for the right lower extremity. A rating of 10 percent is warranted for mild incomplete paralysis of the sciatic nerve. A rating of 20 percent is warranted for moderate incomplete paralysis of the sciatic nerve. A rating of 40 percent is warranted for moderately severe incomplete paralysis of the sciatic nerve, and a rating of 60 percent is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A maximum 80 percent rating may be assigned when there is complete paralysis, i.e., in instances where 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. Medical records show the Veteran has had lower back pain with radiculopathy of the right lower extremity since March 2014. In April 2017, the Veteran underwent surgery for these conditions. The Veteran was afforded a VA examination in December 2019. The examiner stated the Veteran previously had radiculopathy of the right lower extremity, but that it has resolved since her surgery in April 2017. However, private treatment records from Dr. G.R.W. indicate the Veteran was experiencing pain and numbness in her right leg in August and November 2017. January 2017 VA treatment records note the Veteran has had chronic pain since 2015. In January 2018 VA treatment records, "pain radiating to right leg" was listed under active problems. Additionally, the Veteran submitted a February 2020 private medical examination from Dr. G.R.W. Although Dr. G.R.W. noted the Veteran's sciatic nerve did not have any paralysis, incomplete or otherwise, he indicated the Veteran's right lower extremity had moderate constant pain, intermittent pain, numbness, and paresthesias/dysesthesias. He also stated the Veteran needs frequent breaks between sitting and standing positions. There is no evidence, other than the December 2019 examiner's opinion, to support a finding that the Veteran's radicular symptoms have resolved. Rather, the evidence suggests that the Veteran's neurological manifestations have remained of similar severity since 2014. However, the evidence shows the Veteran has not had moderate incomplete paralysis, moderately severe incomplete paralysis, severe incomplete paralysis, or complete paralysis during the period on appeal. Based on the Veteran's subjective complaints of radicular pain, VA treatment records, and private treatment records, the Veteran's right lower extremity radiculopathy is appropriately characterized as more nearly approximating functional impairment akin to mild incomplete paralysis. Therefore, the Veteran is not entitled to a rating in excess of 10 percent for radiculopathy of the right lower extremity. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.