Citation Nr: 22038680 Decision Date: 07/06/22 Archive Date: 07/06/22 DOCKET NO. 15-41 122A DATE: July 6, 2022 ORDER An effective date of April 4, 2012, but no earlier, for service connection for radiculopathy of the left lower extremity sciatic nerve is granted. An effective date of April 4, 2012, but no earlier, for service connection for radiculopathy of the right lower extremity sciatic nerve is granted. Prior to September 5, 2013, an initial rating of 20 percent, but no higher, for radiculopathy of the left lower extremity sciatic nerve is granted, subject to the laws and regulations governing the payment of monetary benefits. From September 5, 2013 to December 10, 2019, an initial rating in excess of 10 percent for radiculopathy of the left lower extremity sciatic nerve is denied. Prior to September 5, 2013, an initial rating of 20 percent, but no higher, for radiculopathy of the right lower extremity sciatic nerve is granted, subject to the laws and regulations governing the payment of monetary benefits. From September 5, 2013 to December 10, 2019, an initial rating higher in excess of 10 percent for radiculopathy of the right lower extremity sciatic nerve is denied. REMANDED Entitlement to a separate rating for radiculopathy of the left lower extremity femoral nerve prior to December 11, 2019 is remanded. Entitlement to a separate rating for radiculopathy of the right lower extremity femoral nerve prior to December 11, 2019 is remanded. FINDINGS OF FACT 1. VA received the Veteran's claim for an increased rating for his service-connected lumbar spine disability on April 4, 2013. 2. There was no pending claim for service connection for radiculopathy of the sciatic nerve or an increased rating for the service-connected lumbar spine disability prior to April 4, 2013. 3. An increase in disability of the service-connected lumbar spine disability, as evidenced by neurological manifestations of the left and right lower extremity sciatic nerve, occurred on April 4, 2012. 4. Resolving reasonable doubt in the Veteran's favor, from April 4, 2012 to September 4, 2013, the Veteran's right and left lower extremity radiculopathy was productive of moderate incomplete paralysis of the sciatic nerve. 5. From September 5, 2013 to December 10, 2019, the Veteran's right and left lower extremity radiculopathy was productive of no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an effective date of April 4, 2012, but no earlier, for service connection for radiculopathy of the left lower extremity sciatic nerve have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date of April 4, 2012, but no earlier, for service connection for radiculopathy of the right lower extremity sciatic nerve have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. Prior to September 5, 2013, the criteria for an initial rating of 20 percent, but no higher, for left lower extremity sciatic nerve radiculopathy were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. 4. From September 5, 2013 to December 10, 2019, the criteria for an initial rating in excess of 10 percent for left lower extremity sciatic nerve radiculopathy were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. 5. Prior to September 5, 2013, the criteria for an initial rating of 20 percent, but no higher, for right lower extremity sciatic nerve radiculopathy were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. 6. From September 5, 2013 to December 10, 2019, the criteria for an initial rating in excess of 10 percent for right lower extremity sciatic nerve radiculopathy were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1999 to July 2003. This case is on appeal from an October 2013 rating decision in which service connection was granted for radiculopathy in the sciatic nerve of each lower extremity, rated 10 percent disabling, effective April 4, 2013. In a February 2021 decision, the Board, in part, denied the Veteran's appeal of the claims for earlier effective dates for the awards of service connection for radiculopathy of the left and right lower extremity sciatic nerve, and for higher initial ratings for radiculopathy of the left and right lower extremity sciatic nerve prior to December 11, 2019. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court granted a joint motion for partial remand (JMPR) in February 2022, which remanded the claims for earlier effective dates for service connection for radiculopathy in the sciatic nerve of each lower extremity, entitlement to ratings in excess of 10 percent for radiculopathy in the sciatic nerve of each lower extremity prior to December 11, 2019, and consideration of entitlement to separate ratings for radiculopathy in the femoral nerve of each lower extremity prior to December 11, 2019. Effective Date The effective date for an award of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Specific to claims for increased disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise, the effective date will be the later of the date of receipt of claim or date entitlement arose. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). Radiculopathy of the Left Lower Extremity Sciatic Nerve Radiculopathy of the Right Lower Extremity Sciatic Nerve By way of background, in a January 2004 rating decision, service connection for chronic lumbar strain was granted effective July 29, 2003. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. The Veteran did not note disagreement with the rating or effective date assigned therein. No new evidence or notice of disagreement was received by VA within one year of the issuance of the January 2004 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed a claim for an increased rating for his chronic lumbar strain on December 21, 2007. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. The claim was denied in a June 2008 rating decision. The Veteran did not note disagreement with the decision. No new evidence or notice of disagreement was received by VA within one year of the issuance of the June 2008 rating decision. As the Veteran did not appeal the decision, that rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. VA received the Veteran's current claim for an increased rating for his lumbar spine disability on April 4, 2013. In an October 2013 rating decision, the agency or original jurisdiction (AOJ) denied an increased rating for the back disability but granted service connection for radiculopathy of the sciatic nerve in each lower extremity effective April 4, 2013, the date the claim for an increased rating for the underlying back disability was received by VA. The Veteran noted disagreement with the effective date assigned and appealed the issue to the Board. After review, the Board observes that there is objective evidence of radiculopathy of the sciatic nerve in both lower extremities prior to the receipt of the Veteran's claim for an increased rating for the service-connected lumbar spine disability. A March 16, 2012 private treatment record notes complaints of numbness in the legs, findings of numbness in both legs and a diagnosis of sciatica. An April 17, 2012 private treatment record notes complaints of pain in the lumbar spine that radiated down the bilateral lower extremities, findings of pain at the L5-S1 dermatomal distribution with diminished strength and diminished sensation and a diagnosis of lumbar radiculitis. Given the above, the record shows objective findings of radiculopathy of the sciatic nerve in the lower extremities secondary to the service-connected lumbar spine disability since at least as early as March 16, 2012 that continued through April 17, 2012. Thus, the Board finds that it is factually ascertainable that an increase in the service-connected back disability had occurred, as evidenced by neurological manifestations, at that time. As the Veteran's claim for increase for the service-connected back disability was received by VA within one year after that date, an earlier effective date of April 4, 2012 for the awards of service connection for radiculopathy of the sciatic nerve in the lower extremities is granted. This is the earliest effective date for service connection available under 38 C.F.R. § 3.400(o)(2). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Radiculopathy of the left lower extremity sciatic nerve Radiculopathy of the right lower extremity sciatic nerve The Veteran claims that the 10 percent ratings assigned for his sciatic nerve radiculopathy prior to December 11, 2019 do not reflect the severity of the disability. The Veteran, per the JMPR, has not claimed any entitlement to higher ratings for his lower extremity sciatic nerve radiculopathy from December 11, 2019 onward. The radiculopathy of the Veteran's left and right lower extremities of the sciatic nerve have each been rated 10 percent under DC 8520. 38 C.F.R. § 4.124a. Under DC 8520 for sciatic nerve disability, a 10 percent rating is warranted for mild incomplete paralysis, 20 percent for moderate incomplete paralysis, 40 percent for moderately severe incomplete paralysis, 60 percent for severe incomplete paralysis with marked muscular atrophy, and 80 percent for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee and flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The words "slight," "moderate," and "severe" as used in the various diagnostic 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, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Turning to the evidence of record, private treatment records dated since March 2012 show complaints of low back pain radiating into the lower extremities. An April 2012 record shows the Veteran's report that he ambulates with a cane due to severe weakness in the right lower extremity. Examination revealed a positive straight leg raise test with pain in a L5-S1 dermatomal distribution with diminished strength and diminished sensation. A June 2013 record shows that the pain in the low back and lower extremities results in difficulties with ambulation and several activities of daily living. Examination revealed severe tenderness of the low back, a positive straight leg raise test, and 5/5 strength in the lower extremities. The Veteran had normal stability and was able to heel and toe walk. A July 2013 record reflects the same complaints as above. The Veteran was scheduled for surgery on August 21, 2013. At an August 2013 VA examination, the Veteran reported low back pain radiating into the lower extremities and that he was scheduled for a laminectomy on August 21, 2013. Examination revealed full muscle strength, normal reflexes and normal sensation. Straight leg raise test was positive on the right but negative on the left. There was mild intermittent pain and mild numbness in the lower extremities. The examiner indicated that the Veteran's radiculopathy was mild. A September 2013 private treatment record shows that the Veteran underwent a laminectomy and discectomy two week prior and was doing well with only mild symptoms. Examination revealed no sensory or motor abnormalities and normal reflexes. Balance and gait were also normal. VA treatment records show that in July 2014 the Veteran reported undergoing surgery in August 2013 and that once in a while he had a dull pain in the low back that radiates to his toes. An April 2017 record show complaints of intermittent low back pain with bilateral lower extremity radicular symptoms. Examination revealed no abnormal sensation or balance problem. Resolving reasonable doubt in the Veteran's favor, the Board finds that prior to September 5, 2013 (the day of the post-operative note showing only mild symptoms and normal neurological examination), the Veteran's lower extremity radiculopathy had been manifested by moderate incomplete paralysis of the sciatic nerve in each lower extremity. Given the above, private treatment records through July 2013 show complaints of severe weakness in the right lower extremity that required the use of a cane and pain in the low back and lower extremities that resulted in difficulty ambulating and with several activities of daily living, and findings of severe tenderness of the low back and diminished strength and sensation. They also show that surgery was scheduled for August 21, 2013. However, private treatment records also show full strength in the lower extremities, normal stability and ability to heel and toe walk. The August 2013 VA examination also revealed full strength, normal reflexes and normal sensation. Here, while the joint motion highlighted the Veteran's difficulty with ambulation and activities of daily living, the record is unclear whether such difficulties are due to the pain from the low back or lower extremities due to the radiculopathy of the sciatic nerve. However, as examinations revealed full strength, normal reflexes and stability, and ability to heel and toe walk, the Veteran's radiculopathy had not more nearly approximated moderately severe incomplete paralysis of the sciatic nerve to warrant a higher 40 percent rating for either extremity. Thus, a 20 percent rating, but no higher, for radiculopathy of each lower extremity is granted prior to September 5, 2013, which encompasses the entire period when the Veteran's radicular symptoms were noted to be more than mild. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). From September 5, 2013 to December 10, 2019, the Board finds that the Veteran's radiculopathy had not more nearly approximated moderate incomplete paralysis of the sciatic nerve. The record shows that the Veteran's symptoms improved with the August 2013 surgery. VA treatment records only show complaints of intermittent low back pain with bilateral lower extremity radicular symptoms with findings of normal sensation and balance. The Board observes that the above reflects only mild incomplete paralysis of the sciatic nerve. Thus, from September 5, 2013 to December 10, 2019, a rating higher than 10 percent is not warranted for either extremity. See also O'Connell v. Nicholson, 21 Vet. App. 89 (2007). REASONS FOR REMAND Entitlement to a separate rating for radiculopathy of the left lower extremity femoral nerve prior to December 11, 2019 Entitlement to a separate rating for radiculopathy of the right lower extremity femoral nerve prior to December 11, 2019 In granting the joint motion, the Court observed that the Board failed to consider the issue of entitlement to a separate rating for radiculopathy of the left and right lower extremity femoral nerve. The joint motion noted that private medical records showed numbness in the lower extremities in March 2012 and radiculopathy signs with radiation of the back pain to both legs in August 2013. However, records from that time only showed a diagnosis of sciatica, or radiculopathy of the sciatic nerve. The Veteran also claims that June 2013 and July 2013 office visits show symptoms of femoral nerve radiculopathy. A December 2019 VA examination report first indicates involvement of the femoral nerve, as involving the L2, L3 and L4 nerve roots. However, a later April 2021 VA examination report only notes involvement of the sciatic nerve. Moreover, VA MRIs have only shown stenosis and disc herniation at L5-S1. As such, the record is unclear whether the Veteran had radiculopathy of the femoral nerve prior to the December 2019 examination or even whether that finding was in error as there is no current evidence of the disorder. Thus, the AOJ should obtain an opinion on whether the Veteran has disability of the femoral nerve and, if so, when it began. The matter is REMANDED for the following action: Obtain a medical opinion on the Veteran's radiculopathy of the femoral nerve. If the examiner deems that an examination is warranted, then one should be provided. The examiner is asked to address the following: Is it at least as likely as not that the Veteran currently has, or ever had during the appeal period beginning on April 4, 2012, radiculopathy of the femoral nerve in each lower extremity? The examiner should discuss the March 2012, June 2013, July 2013, and August 2013 private treatment records which the Veteran claims show femoral nerve radiculopathy or symptoms thereof; the December 2019 VA examination report noting involvement of the femoral nerve; the April 2021 VA examination report noting only involvement of the sciatic nerve; and VA MRIs noting stenosis and disc herniation only at L5-S1. (Continued on the next page) If the examiner finds that the Veteran currently has, or had at any time during the appeal period, radiculopathy of the femoral nerve in each lower extremity, then the examiner should give an approximate date of onset and, if applicable, date of resolution. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should state the reason why. The examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. Jason George Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. W. Kim, 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.