Citation Nr: 22040468 Decision Date: 07/14/22 Archive Date: 07/14/22 DOCKET NO. 18-17 620 DATE: July 14, 2022 ORDER Entitlement to a rating in excess of 10 percent for lumbar radiculopathy of the right lower extremity is denied. FINDING OF FACT The evidence fails to show that the Veteran's radiculopathy showed moderate incomplete paralysis during the appellate period. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for radiculopathy of the right lower extremity disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from January 1978 to April 1978. This case comes before the Board of Veterans' Appeals (Board) from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2022. A copy of the transcript has been added to the record. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§4.1. The Veteran's radiculopathy is rated under Diagnostic Code 8520, which rates incomplete or complete paralysis of the sciatic nerve. Mild incomplete paralysis warrants a 10 percent disability rating; moderate incomplete paralysis warrants a 20 percent disability rating; moderately severe incomplete paralysis warrants a 40 percent disability rating; and, severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating; complete paralysis: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost warrants a 80 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. As it pertains to peripheral nerve disabilities the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The terms "mild," "moderate" and "severe" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy In April 2008, the Veteran submitted a claim for an increased rating for a back condition, which was later found to include a claim of service connection for right lower extremity radiculopathy, secondary to lumbar strain. A VA examination was provided in May 2008. There, the Veteran reported having lumbar spine pain that radiated to the right lower extremity and that he walked with a cane. The VA examiner did diagnose the Veteran with radiculopathy. See May 2008 VA Examination. A review of the Veteran's medical record shows that in November 2008, a functional capacity questionnaire showed that the Veteran reported lumbar spine pain that radiated to the right lower extremity. In June 2010, the Veteran underwent a physical medicine rehabilitation consultation. The physician stated that "radicular symptoms weren't present during clinical exam, but patient does report having pain down the back of the right leg." See March CAPRI at 68. The Veteran's VA medical treatment records do not contain any complaint or treatment of radiculopathy past this date. In October 2010, a residual functional capacity questionnaire was completed, in which sensory loss in the right lower extremity was reported. The private examiner diagnosed chronic low back pain and sensory disturbance of the right lower extremity. See July 2014 Medical Treatment Record Non-Government Facility. A second examination for the back was provided in January 2013. There, the Veteran reported numbness in the right leg. However, upon examination the VA examiner noted that the Veteran did not have radicular pain, or any other symptoms caused by radiculopathy. Rather, the VA examiner opined that the Veteran's decreased sensation of the right leg was due to a vein graft site after a coronary artery bypass. See January 2013 VA Examination. In January 2016, the Board granted the Veteran a separate rating of 10 percent for radiculopathy. There, the Board found that the evidence was in equipoise as towards whether the Veteran's right lower extremity radiculopathy was due to his service-connected lumbar spine condition or his non-service connected heart condition. The AOJ granted a 10 percent rating in January 2016. See January 2016 Rating Decision Narrative. In December 2016, the Veteran submitted a notice of disagreement (NOD) and contended that a higher rating was warranted. See December 2016 NOD. A Statement of the Case (SOC) was provided in March 2018, and the Veteran perfected his appeal in the same month via VA Form 9, in which a hearing before a VLJ was requested. The hearing was conducted in January 2022. When asked about his symptoms, the Veteran stated that he had no paralysis in his leg, but that it felt stiff when waking up and that he took two pills a day for pain in his leg. When asked about the functional impact of his disability, the Veteran stated that he could not stand for too long, especially when the weather is cold. See April 2022 Hearing Related. The claim is now before the Board. Here, the probative evidence of record shows that the Veteran suffers from pain and discomfort due to his radiculopathy. The record does not show loss of motor function or reflexes. And while the Veteran has reported using a cane due to his lumbar spine condition and radiculopathy, the record does not show that the Veteran is unable to ambulate or drive an automobile. Taken as a whole, the medical record shows that the Veteran's radiculopathy was mild in nature, as there is evidence of the Veteran complaining of pain from his disability and seeking treatment. Furthermore, the Veteran has reported being unable to have prolonged standing, especially in cold weather. The Board finds that this shows mild incomplete paralysis, as the disability is sensory in nature and does not preclude the Veteran from regular activities. In the absence of such functional loss, the Board finds that the Veteran's radiculopathy is best approximated by his current 10 percent rating, which contemplates mild incomplete paralysis. Given that the standard is that the Board must evaluate all of the evidence to the end that its decisions are "equitable and just," the Board finds that taken as a whole the Veteran's condition is mild in nature and therefore a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.6. S. CHARLES NEILL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.