Citation Nr: 22044533 Decision Date: 08/04/22 Archive Date: 08/04/22 DOCKET NO. 16-51 541 DATE: August 4, 2022 ORDER Entitlement to an evaluation in excess of 20 percent for service-connected radiculopathy of the right lower extremity prior to March 4, 2017, and in excess of 40 percent thereafter, is denied. FINDING OF FACT 1. The Veteran's service-connected radiculopathy of the right lower extremity was manifest by symptoms comparable to no more than moderate, incomplete paralysis of the sciatic nerve prior to March 4. 2017. 2. The Veteran's service-connected radiculopathy of the right lower extremity was manifested by symptoms comparable to no more than moderately severe, incomplete paralysis of the sciatic nerve on and after March 4, 2017. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 20 percent for service-connected radiculopathy of the right lower extremity prior to March 4, 2017, and in excess of 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1976 to February 1977. The Veteran testified before the undersigned Veterans Law Judge at a September 2019 Board Hearing held via videoconference. The claims file contains a transcript of the hearing. Most recently, the Board denied the above-listed claim, as well as other claims, in a June 2021 Board Decision. The Veteran appealed that decision with respect to the right lower radiculopathy claim to the United States Court of Appeals for Veterans Claims (CAVC), and the CAVC issued an order granting the parties' March 2022 Joint Motion for Partial Remand (JMPR) to set aside the June 2021 Board decision with respect to the right lower radiculopathy claim. The appeal was dismissed as to all other aspects of the June 2021 Board Decision. The Court remanded the case back to the Board for compliance with the JMPR, particularly including readjudication of the right lower radiculopathy claim. To the extent the record contains evidence not yet considered by the agency of original jurisdiction (AOJ), the Veteran has waived consideration of that evidence by the AOJ prior to a decision on the merits. See April 2022 AOJ Waiver. Therefore, the Board may proceed to the merits. See 38 C.F.R. § 20.1305(c). In June 2021, after the prior Board decision, the Veteran's previous attorney filed a motion to withdraw his representation. The motion indicates a copy was sent to the Veteran. Therefore, the Veteran is currently unrepresented. The Veteran is currently service-connected for radiculopathy affecting the right sciatic nerve and seeks a higher rating for that condition, to include awarding a separate, additional rating for the right femoral nerve. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). 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). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. An August 2012 private orthopedic treatment note contains some detailed findings regarding the lower extremity nerves. The physician indicated that motor and sensory neurologic exam "is grossly intact" and that reflexes were symmetric. The examiner noted reduced strength at the ankle dorsiflexion and extensor hallucis longus, both on the right. Straight leg raising test was described as "back pain only", bilaterally. The physician did not indicate any symptoms of pain or numbness in either lower extremity and did not diagnose radiculopathy. An October 2012 private treatment note from the same physician notes "aching" pain radiating from the lumbar spine to the bilateral lower extremities. The Veteran reported various symptoms which were not clearly delineated between back symptoms and lower extremity symptoms (much less which lower extremity). However, the symptoms included difficulty going to sleep, lack of joint motion, night pain, night-time awakening, numbness, stiffness, tenderness, tingling or prickling and weakness. The Veteran reported difficulties with activities of daily living as well as difficulty putting on socks and shoes. The physician diagnosed low back and right leg pain in L5/S1. The May 2013 VA examination revealed normal muscle strength and normal reflexes, bilaterally. Straight leg raising test was positive on the right. The Veteran had no symptoms of radiculopathy on the left, but moderate constant pain, paresthesias, and numbness on the right. The examiner indicated that the Veteran had radiculopathy of the right sciatic nerve, but failed to indicate an overall severity of the involvement. The examiner was evaluating the back disability, so only discussed the functional impact of the back disability. However, the limitations included inability to perform the physical duties of an airplane mechanic, such as holding heavy things, crawling, and bending. Because of the overall effect of his back disability, he "had to take a desk job." The March 2017 VA examination (peripheral nerves) resulted in diagnoses of radiculopathy of the left and right lower extremities. The examiner indicated that the Veteran had moderate constant pain and paresthesias/dysesthesias as well as severe numbness of the right lower extremity and that the Veteran had mild intermittent pain, paresthesias/dysesthesias, and numbness of the left lower extremity. Muscle strength testing was normal except for 4/5 at the right knee, ankle plantar flexion, and ankle dorsiflexion. Reflexes were 1+ at the right knee and right ankle, but otherwise normal. Sensation was decreased at the right upper thigh, right thigh/knee, bilateral lower leg/ankle, and bilateral feet. There were trophic changes including loss of hair of the bilateral lower legs. The examiner indicated that the Veteran had moderately severe incomplete paralysis of the right sciatic nerve and mild incomplete paralysis of the left sciatic nerve. The examiner indicated that all other nerves were normal. The examiner indicated that the peripheral nerve conditions had no impact on the Veteran's ability to work. The March 2017 VA examination (thoracolumbar spine) revealed muscle strength of 4/5 at the right hip flexion, knee extension, ankle plantar flexion, and ankle dorsiflexion, but otherwise normal (including no abnormalities on the left). Reflexes were 2+ except at the right ankle (1+). Sensation was decreased at the right upper anterior thigh, the right thigh/knee, the bilateral lower leg/ankle, and the bilateral foot/toe. Straight leg raising test was positive bilaterally. The examiner indicated that the Veteran had symptoms of radiculopathy. In the right lower extremity, they included moderate constant pain, severe intermittent pain and paresthesias/dysesthesias, and mild numbness. In the left lower extremity, they included mild intermittent pain, paresthesias/dysesthesias, and numbness. There were no other signs of symptoms of radiculopathy. The examiner opined that the Veteran had severe incomplete paralysis of the right sciatic nerve and mild incomplete paralysis of the left sciatic nerve. The January 2018 VA examination (thoracolumbar spine) indicated reduced (4/5) strength at the right hip flexion, right knee extension, right ankle plantar flexion, and right ankle dorsiflexion. Reflexes were normal (2+) except at the right ankle (1+). Sensation was decreased at the right upper anterior thigh, the right thigh/knee, the bilateral lower leg/ankle, and the bilateral foot/toes. Straight leg testing was positive bilaterally. The Veteran had symptoms of radiculopathy. In the right lower extremity, they included moderate constant pain, severe intermittent pain and paresthesias/dysesthesias, and mild numbness. In the left lower extremity, they included mild intermittent pain, paresthesias/dysesthesias, and numbness. There were no other signs of symptoms of radiculopathy. The examiner opined that the Veteran had severe incomplete paralysis of the right sciatic nerve and mild incomplete paralysis of the left sciatic nerve. A private internist opined in a January 2019 Independent Medical Evaluation that the Veteran had damage to the femoral nerve that was related to the Veteran's degenerative spondylolisthesis as evidenced by the examination findings of weakness of hip flexion, knee extension, ankle dorsiflexion, and ankle plantar flexion as well as sensory deficiencies in the anterior thigh. Similarly, another private physician opined in a September 2019 Independent Medical Evaluation that, in addition to the bilateral lumbar radiculopathy, the Veteran had "a peripheral neuropathy of the right lower extremity involving the femoral nerve." The physician explained that the loss of strength of the lower extremity muscle group, the decreased reflexes, the decreased sensation of the right anterior thigh, the bilateral decreased sensation of the lower legs, and loss of leg hair all supported his opinion. The examiner provided "conclusions" which purported to suggest an appropriate rating for the Veteran's degenerative spondylolisthesis of the lumbar spine, but did not address whether the "peripheral neuropathy of the right lower extremity involving the femoral nerve" he had diagnosed based on a record review was due to the Veteran's service-connected conditions and, if so, the severity of the peripheral neuropathy. The December 2020 Examination (peripheral nerves) resulted in diagnoses of radiculopathy of the left and right lower extremities. The Veteran reported increased pain radiating into the lower extremities with the right worse than the left. The examiner indicated that the Veteran had moderate constant pain and paresthesias/dysesthesias as well as severe intermittent pain and numbness of the right lower extremity and that the Veteran had mild constant pain, intermittent pain, paresthesias/dysesthesias, and numbness of the left lower extremity. Muscle strength testing was reduced (4/5) bilaterally for knee extension, ankle plantar flexion, and ankle dorsiflexion. Reflexes were normal (2+) at all tested locations. Sensation was decreased at the right upper thigh and right thigh/knee and of the bilateral lower leg/ankle and foot/toes. There were trophic changes including loss of hair of the bilateral lower legs. The examiner indicated that the Veteran had moderately severe incomplete paralysis of the right sciatic nerve and mild incomplete paralysis of the left sciatic nerve. The examiner indicated that all other nerves were normal. The examiner indicated that the peripheral nerve conditions had no impact on the Veteran's ability to work. The December 2020 VA examination (thoracolumbar spine) indicated 4/5 strength throughout both lower extremities, decreased sensation throughout the right lower extremity and at the lower leg/ankle and foot/toes of the left lower extremity. Straight leg raising test was positive bilaterally. The Veteran had symptoms of radiculopathy of the lower extremities including severe paresthesias/dysesthesias on the right, moderate constant pain and numbness on the right, moderate numbness on the left, and mild intermittent pain and paresthesias/dysesthesias on the left. The examiner opined that the Veteran had severe incomplete paralysis of the right sciatic nerve and mild incomplete paralysis of the left sciatic nerve. Analysis The Veteran contends that he is entitled to a higher rating for the right lower extremity radiculopathy including because he should have a separate rating for damage to the femoral nerve in addition to the currently rated sciatic nerve radiculopathy. See January 2019 Independent Medical Evaluation ("According to section 8526 moderate damage to the right lower extremity with sensory loss is rated at 20% and should be appropriately rated for this veteran. This should be in addition to the 40% for the right leg radiculopathy and 20% degenerative spondylolisthesis."). As noted, the Veteran currently has a 20 percent rating under DC 8520 for the period from August 13, 2012, to March 4, 2017. The evidence for this period includes the treatment records, such as the August 2012 private treatment note, and the March 2013 VA examination, which all show considerably less severe symptoms than the March 2017 VA examination which first supported a higher, 40 percent rating. The March 2013 VA examination describes the symptoms, generally, as moderate and the treatment records are consistent with this description, which warrants a 20 percent rating under DC 8520. The greater weight of the evidence is against awarding a rating higher than 20 percent for radiculopathy of the right lower extremity under DC 8520 prior to March 4, 2017. As of March 4, 2017, the VA examinations support awarding a 40 percent rating under DC 8520 for the right lower extremity radiculopathy. The evidence establishes that the Veteran had symptoms comparable to moderately severe, incomplete paralysis of the right sciatic nerve. In making this finding, the Board notes that the March 2017 examination (thoracolumbar spine DBQ), January 2018 VA examination (thoracolumbar spine DBQ), and the December 2020 VA examination (thoracolumbar spine DBQ) each indicate "severe" incomplete paralysis of the sciatic nerve. But the same examiners who completed the 2017 and 2020 thoracolumbar spine DBQs also completed peripheral nerve DBQs. The peripheral nerve DBQs from March 2017 and December 2020 indicate that the Veteran had moderately severe, incomplete paralysis of the right sciatic nerve. Importantly, the thoracolumbar spine DBQs only had options to select "moderate" or "severe" incomplete paralysis of the sciatic nerve. The Board reconciles these apparently different conclusions on spine DBQs versus peripheral nerve DBQs by finding that the 2017 and 2020 VA examiners concluded that "moderately severe" was the best description of the overall severity of the incomplete paralysis of the right sciatic nerve. The indication of "severe" incomplete paralysis is due to the examiners being forced to choose between "moderate" and "severe" as those were the only choices on that particular DBQ. While the January 2018 VA examiner did not also complete a peripheral nerves DBQ, she also had to choose between "moderate" and "severe". Therefore, the Board will not automatically assume that she rejected "moderately severe" as the most appropriate interpretation. In any case, the question of the appropriate rating is ultimately a legal question, so the VA examiners' opinions regarding the severity and the terms they use to describe it do not limit the Board's responsibility to evaluate the evidence and apply the rating criteria to that evidence. The rating criteria does not provide different ratings for "moderately severe" versus "severe" incomplete paralysis. Instead, the rating criteria differentiate between "moderately severe incomplete paralysis" and "severe incomplete paralysis with marked muscular atrophy." (emphasis added). Here, none of the medical professionals who evaluated the Veteran found that there was muscle atrophy of the right lower extremity. In addition, all found a combination of some "severe" symptoms and some "moderate" symptoms with two examiners finding a mix of mild, moderate, and severe symptoms. This suggests a severity between moderate and severe, i.e., moderately severe. Also, the rating schedule is designed to compensate for the impact on earning capacity. Most of the VA examiners found that the radiculopathy of the lower extremities had no impact on the Veteran's occupational functioning. For all of these reasons, as of March 4, 2017, the greater weight of the evidence supports finding that the Veteran had moderately severe, incomplete paralysis of the right lower extremity. This warrants a 40 percent rating under DC 8520 effective March 4, 2017. The Veteran argues that he is entitled to a 20 percent rating under 38 C.F.R. § 4.124a, DC 8526, in addition to the other assigned ratings. See January 2019 Independent Medical Evaluation. DC 8526 is applicable for paralysis of the anterior crural (femoral) nerve. Under DC 8526, a 10 percent rating is warranted for mild, incomplete paralysis. A 20 percent rating is warranted for moderate, incomplete paralysis. A 30 percent rating is warranted for severe, incomplete paralysis. And a 40 percent rating is warranted for complete paralysis of the anterior crural nerve (femoral nerve) with paralysis of the quadriceps extensor muscles. The evidence in favor of finding that the Veteran had involvement of the femoral nerve includes the January 2019 Independent Medical Evaluation and September 2019 Independent Medical Evaluation. Only the January 2019 Independent Medical Evaluation explicitly linked the reported femoral nerve damage to the Veteran's service-connected back disability. Both of the opinions are based on review of the medical records and rely heavily on the VA examiners' documentation of their findings on physical examination. However, the VA examiners have uniformly found that the Veteran does not have involvement of the femoral nerve. The question, then, is which opinions are more persuasive. As noted, the September 2019 IME states there is damage to the femoral nerve, but does not explicitly relate that diagnosed injury to any service-connected condition. Therefore, the Board finds it has no probative value with respect to whether a separate rating is actually warranted for involvement of the femoral nerve. The January 2019 IME contains extensive reasoning and explanation and does provide some indication of the severity of the involvement (equating to moderate, incomplete paralysis). The opinion is entitled to probative weight. The reasoning of the opinion is intuitive and logical and is supported both by references to medical evidence (primarily the VA examinations) and to medical literature. However, the May 2013, March 2017, January 2018, and December 2020 VA examinations warrant probative weight against finding there is femoral nerve involvement due to the back disability. The May 2013 VA examination is primarily related to the back and contains the fewest findings regarding the peripheral nerves. Moreover, the examiner did not explicitly indicate that there was not femoral nerve involvement, though it is implied given the examiner's task was to identify the involved nerves and she only identified the sciatic nerve. The Board assigns this VA examination minimal probative value against finding femoral nerve involvement as compared to the January 2019 IME. The March 2017 VA examination is more thorough. The examiner filled out two DBQs, one for the back and one for the peripheral nerves, and there are extensive findings on physical examination. The peripheral nerves DBQ contains a specific finding that the right femoral nerve is normal. While the examiner does not provide a detailed explanation with respect to each nerve that she found to be normal, the examination overall is thorough and complete. Whereas the physician who prepared the January 2019 IME was interpreting the results as presented by the VA examiner, the VA examiner made her determination on the actual physical examination. The March 2017 VA examiner's opinion that there was not involvement of the femoral nerve is entitled to significant probative weight. The January 2018 VA examiner was primarily focused on the back disability, but provided a complete assessment of the signs and symptoms of radiculopathy. His report identifies "the nerve roots involved" as the right and left sciatic nerves. While the examiner did not expressly indicate that the femoral nerve was not involved, the report is unambiguous in finding that only the sciatic nerve was affected. Again, although the January 2019 IME interprets the physical findings in this report as indicating involvement of the femoral nerve, the examiner who recorded those findings indicated that, to the extent the findings could be attributed to nerve involvement associated with the back disability, only the sciatic nerve was involved. The VA examiner had the advantage of rendering an opinion based on his own examination, rather than on the recorded findings of another physician. The January 2018 VA examiner's opinion is entitled to probative weight against finding involvement of the femoral nerve. The December 2020 VA examination likewise indicated that the radicular symptoms of the lower extremities was due to incomplete paralysis of the sciatic nerve and that the femoral nerve was normal. As with the January 2018 VA examiner's opinion, the December 2020 VA examiner had the advantage of rendering an opinion based on her own examination, rather than on the recorded findings of another physician. Moreover, the DBQs completed by the December 2020 VA examiner with respect to both the back and the peripheral nerves included extensive findings relating to the peripheral nerves and the examiner expressly stated that the femoral nerve was normal. The signs and symptoms of radiculopathy that the examiner identified were all attributed to incomplete paralysis of the left and right sciatic nerves. The examiner provided this opinion based on actual examination of the Veteran with a comprehensive report to support his conclusions. The December 2020 VA examiner's opinion is entitled to probative weight against finding involvement of the femoral nerve. The question is whether the multiple VA examiners' opinions outweigh the January 2019 IME sufficiently to find against femoral nerve involvement or, instead, whether the evidence is in relative equipoise such that femoral involvement will be conceded. The single January 2019 IME does not persuasively outweigh the four VA examiners' opinions that were each based on review of the available records and physical examination of the Veteran. The Board finds significant the fact that the September 2019 IME also found that there was damage to the femoral nerve but, as the Board interprets his report, he makes clear that it is due to "peripheral neuropathy" in contrast to the sciatic involvement which is due to "lumbar radiculopathy." As with the January 2019 IME, the physician points to the physical findings of other examiners, such as loss of strength in the lower extremity muscle groups, loss of leg hair, and the like to diagnose peripheral neuropathy of the femoral nerve. Neither the January 2019 IME nor the September 2019 IME explain, however, the process whereby the lumbar spine disability would cause femoral nerve damage. This key element is unexplained by either physician who prepared an IME. Regardless, the fact remains that four different VA examinations have resulted in the conclusion that there is no involvement of the right femoral nerve. The IMEs are explicitly and primarily based on the findings of the VA examiners. While the VA examiners have not provided any detailed narrative rationale for finding the radiculopathy does not include any paralysis of the femoral nerve, the physicians who provided the IME did not provide any rationale at all for why or how the back disability would be related to the femoral nerve damage. The VA examiners' opinions provide a coherent, cohesive disability picture that is consistent with their findings on physical examination. While the private physicians who submitted IMEs offer one possible, logical interpretation of the data recorded by the VA examiners, the cumulative weight of the VA examiners' opinions (particularly given their detailed physical examinations with thorough documentation of their findings) regarding the best interpretation of the data they recorded outweighs that of the two IMEs. The Board finds that the opinions of the VA examiners based on their own physical examination of the Veteran warrant significantly more probative weight than the IMEs which are based on the VA examiners' reports of their findings and fail to provide convincing rationales with respect to the disagreement with the VA examinations on which they rely. The greater weight of the evidence is against finding that the Veteran had neurological abnormalities associated with the back disability that involved the femoral nerve. A separate rating for damage to the femoral nerve, whether under DC 8526 or otherwise, is not 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. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the evidence is not in approximate balance, but is persuasively against the claim, therefore there is not reasonable doubt to be resolved in favor of the Veteran. 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, 21 F.4th 776, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). The greater weight of the evidence is persuasively against the Veteran's claim. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity prior to March 4, 2017, and to a rating in excess of 40 percent for radiculopathy of the right lower extremity on or after March 4, 2017, is denied. Duties to Notify and Assist The Veteran has not raised any specific issues with the duty to notify or duty to assist. Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.