Citation Nr: 23057724 Decision Date: 10/24/23 Archive Date: 10/24/23 DOCKET NO. 15-33 581 DATE: October 24, 2023 ORDER Entitlement to an initial evaluation in excess of 20 percent for right lower extremity radiculopathy is denied. FINDING OF FACT The Veteran's right lower extremity radiculopathy is not productive of moderately severe incomplete paralysis. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Georgia Army National Guard and had a period of active duty for training (ACDUTRA) from March 1981 to May 1981 and from May 2003 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2018. A transcript of that hearing has been associated with the claims file. The Board remanded the case for the issuance of a statement of the case (SOC) in December 2015 and for additional development in June 2019, September 2020, April 2022, and September 2022. That development was completed, and the case has since been returned to the Board for appellate review. The Board notes that the appeal had originally included the issues of entitlement to service connection for radiculopathy of the left and right upper extremities. However, during the pendency of the appeal, the agency of original jurisdiction (AOJ) granted service connection for those disabilities in a July 2023 rating decision. The grant of service connection constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). As such, the issues are no longer in appellate status and are no longer before the Board. The Board also notes that the Veteran has submitted claims for a total evaluation based upon individual unemployability due to service-connected disabilities (TDIU). See e.g., August 2023 VA Form 21-8940. However, he has already been granted entitlement to TDIU throughout the appeal period, which constitutes a full grant of the benefit sought. Therefore, the Board finds that the issue is not currently on appeal. Cf. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018). 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 liberally 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 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, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule does not apply when the evidence persuasively favors one side or the other). The Veteran is currently assigned a 20 percent evaluation for his service-connected right lower extremity radiculopathy, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent evaluation is assigned for mild incomplete paralysis of the sciatic nerve, and a 20 percent evaluation is warranted for moderate incomplete paralysis. A 40 percent evaluation is contemplated for moderately severe incomplete paralysis, and a 60 percent evaluation is warranted for severe incomplete paralysis with marked muscular atrophy. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. The term "incomplete paralysis," with respect to peripheral nerve injuries, indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a. In rating peripheral nerve disability, 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. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. 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. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull. 38 C.F.R. § 4.120. The words "mild," "moderate," "moderately severe," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Therefore, the Board finds it appropriate to utilize definitions provided by a general-purpose dictionary. Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003) (in the absence of an express definition, words are given their ordinary meaning). Mild is generally defined as not being or involving what is extreme or not severe. Merriam-Webster's Collegiate Dictionary, 787 (11th ed. 2003). Moderate is generally defined as tending toward the mean or average amount. Id. at 798. Severe is generally defined as of a great degree or serious. Id. at 1140. Thus, moderately severe, by extension, lies somewhere in the middle of these definitions. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to an increased evaluation for his right lower extremity radiculopathy. Initially, the Board notes that the evidence shows that the Veteran has had an altered gait at times. However, his altered or impaired gait has been attributed to his service-connected lumbar spondylosis, which has been assigned a 40 percent evaluation. See e.g., August 2015 SOC (noting evidence showing muscle spasm and tenderness of the lumbar paraspinals resulting in an antalgic gait for which a 20 percent evaluation had been assigned); Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14 (avoidance of pyramiding) The Veteran was afforded a VA examination for his back disability in November 2012, which included a discussion of radiculopathy symptoms. The examiner stated that radiculopathy was present in the right sciatic nerve and found that the condition caused moderate pain, moderate paresthesias and/or dysesthesias, and moderate numbness. However, strength testing was normal, and there was no muscle atrophy present. Sensory testing was also normal, and reflex testing showed hypoactive knee and ankle joints. The examiner concluded that the Veteran's radiculopathy was moderate in nature. An August 2013 VA treatment record indicated that medication was recommended for lumbar radicular pain, and a March 2014 VA treatment record noted paresthesias of the lower extremities. In September 2014, a VA medical provider noted symmetrical extremity strength and no atrophy. The Veteran was then afforded VA examinations for his back and peripheral nerves in April 2015 during which radiculopathy was not found in his right lower extremity. During another VA peripheral nerve examination in February 2016, the examiner found that there was mild incomplete paralysis of the right sciatic nerve. The Veteran had mild intermittent pain and mild paresthesias and/or dysesthesias on evaluation, but there was no muscle atrophy. Muscle strength, reflex, and sensory testing were also normal in the right lower extremity. The examiner noted that the "last" VA examiner in 2012 did not note right-side radiculopathy, but observed the medical records indicated that the Veteran was being treated for bilateral radiculopathy and confirmed the diagnosis of bilateral radiculopathy. The Board notes that the 2016 VA examiner mistakenly stated that the 2012 VA examiner found no radiculopathy in the right lower extremity, whereas it was actually the April 2015 VA examiner. The Veteran was later provided a VA examination in May 2019 for his back disability, which included assessments regarding radiculopathy. The examiner found that he had radiculopathy in his right lower extremity, which she characterized as mild. She indicated that there was mild constant pain, mild paresthesias and/or dysesthesias, and mild numbness in the right extremity and found the condition involved the femoral and sciatic nerves. Muscle strength testing revealed 4/5 in the right leg, but muscle atrophy was not found. Reflex testing also revealed hypoactive joints in the right knee and ankle, and sensory testing revealed decreased sensation to light touch in the right lower leg/ankle. The Veteran was afforded another VA examination in December 2019. The examiner indicated he had right lower extremity radiculopathy involving the sciatic nerve root, which was characterized as mild. There was no pain, paresthesia, or numbness upon examination. Strength and sensory testing were also normal on the right side, and there was no muscle atrophy. Reflex testing revealed hypoactive joints in the knee and ankle. VA examinations performed in connection with the Veteran's back disability in February 2021 and July 2021 found no right extremity radiculopathy. The Veteran was subsequently provided a VA peripheral nerve examination in June 2022. The examiner diagnosed him with bilateral lumbar radiculopathy and noted that he was experiencing mild intermittent pain, mild paresthesias, and mild numbness in the right lower extremity. Muscle strength testing was normal, and muscle atrophy was not found. Reflex and sensory testing were also normal at that time. The examiner characterized the condition as mild incomplete paralysis of the sciatic nerve. In November 2022, the Veteran was afforded another VA examination during which the examiner concluded that he had moderate incomplete paralysis of the sciatic nerve. There was moderate constant pain, severe intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Muscle strength testing was normal in the right lower extremity, and atrophy was still not found. Reflex testing was also normal; however, decreased sensation was found in the right thigh/knee, lower leg, and foot/toes. The examiner stated that he had reviewed the conflicting evidence and remand and performed a physical examination after which he determined that the peripheral nerve diagnosis was consistent with the sciatic nerve. The Board finds that the VA examiner's statements that he had reviewed the conflicting data, as well as the remand, satisfies the directives set forth in its April 2022 and September 2022 remands. Overall, the Board finds that evidence does not show that the Veteran has moderately severe incomplete paralysis of the sciatic nerve As previously noted, the November 2022 VA examiner reviewed the evidence and performed a physical examination after which he determined that the service-connected disability involves the sciatic nerve, which the Board finds highly probative. Moreover, numerous VA examiners have characterized the Veteran's symptoms as mild or moderate, and on other occasions, no radiculopathy was found at all. Although the November 2022 VA examiner noted that the Veteran had severe intermittent pain, he nevertheless concluded that the disability was moderate. His characterization is supported by the examination findings that he had only moderate constant pain, mild paresthesias and/or dysesthesias, and mild numbness; normal muscle strength and reflexes; and no muscle atrophy. To the extent that some examinations did reveal hypoactive reflexes, the Board notes that no other more severe symptoms were found during those examinations. Indeed, the November 2012 and May 2019 VA examiners found only mild or moderate pain, mild or moderate paresthesias and/or dysesthesias, and mild or moderate numbness. In addition, the December 2019 VA examiner found that there was no pain, paresthesia, or numbness upon examination. The November 2012 and December 2019 VA examiners also indicated that there was normal strength and sensory testing and no muscle atrophy. The May 2019 VA examiner found 4/5 muscle strength with no atrophy and only decreased sensation to light touch in the right lower leg and ankle. The examiners further concluded that the condition was mild or moderate overall, and the subsequent VA examination in November 2022 revealed normal reflexes. The Board further notes that the Veteran was often found to have normal sensory testing. However, to the extent that some decreased sensation was shown in his right lower extremity, the Board again notes that, where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a. Based on the foregoing, the Board finds that the weight of the evidence does not persuasively show that the Veteran has had moderately severe incomplete paralysis. Accordingly, the Board concludes that entitlement to an initial evaluation in excess of 20 percent is not warranted for right lower extremity radiculopathy. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rideout-Davidson, Brianne 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.