Citation Nr: 23057771 Decision Date: 10/25/23 Archive Date: 10/25/23 DOCKET NO. 20-12 751 DATE: October 25, 2023 ORDER Entitlement to an initial disability rating of 20 percent for right lower extremity radiculopathy is granted. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy from October 23, 2020 is denied. FINDING OF FACT Throughout the entire period on appeal, radiculopathy of the right lower extremity was manifested by moderately severe involvement of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 20 percent for right lower extremity radiculopathy are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 2. From October 23, the criteria for a disability rating in excess of 20 percent for right lower extremity radiculopathy are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1985 to February 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The claim before the Board was most recently remanded in a May 2020 decision for a VA examination. The claim now returns to the Board after the examination. 1. Entitlement to an initial disability rating of 20 percent for right lower extremity radiculopathy 2. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy from October 23, 2020 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the new uniform evaluation for the Veteran's right lower extremity radiculopathy is appropriate. The Veteran's right lower extremity radiculopathy is rated under Diagnostic Code 8520. Under Diagnostic Code 8520, paralysis of the sciatic nerve: a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with evidence of marked muscular atrophy. 38 C.F.R. § 4.124a. Complete paralysis will be evaluated as 80 percent disabling for such symptoms as foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Id. The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term "incomplete paralysis" with 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 the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124 (a). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. The Veteran argues that he is entitled to a higher rating for the entire period on appeal. The Board agrees that a higher initial rating is warranted. In its initial rating decision and subsequent statement of cases, the RO cited to examinations conducted in July 2018 and February 2020 as rationale for the original 10 percent rating. However, a review of the claims file indicates that examinations specifically for peripheral nerves were not undertaken during those months; at minimum, a disability benefits questionnaire for peripheral neuropathies is not present in the claims file during the specified time periods. The Veteran submitted a private examiner's statement from April 2019. The private examiner, Dr. G.U., found that the Veteran's described symptoms matched the criteria for a 20 percent. However, the Board notes that the private examiner based her assessment solely off the Veteran's lay statements and did not appear to do any diagnostic testing on her own. See Medical Treatment Record, received May 28, 2019. In November 2020, the Veteran was afforded a VA examination. The VA examiner noted the following regarding the right lower extremity: no constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, mild numbness. The VA examiner indicated that there was moderate incomplete paralysis of the sciatic nerve in the right lower extremity. Muscle atrophy was not observed. DTR reflexes were normal except in the knees, which were considered hypoactive. The Board has reviewed the remainder of the claims file and considered lay statements from the Veteran regarding the severity of his right lower extremity radiculopathy. Upon review, the Board finds that a rating of 20 percent for the entire period on appeal is warranted. Throughout the entire period on appeal there was moderate incomplete paralysis. In particular, the evidence within the claims file, such as the Veteran's private examination, indicates that a higher rating is warranted for part of the appeal period. The Board finds that the disability was primarily manifested by sensory disturbance and pain with no impairment of motor functions, but some loss of reflexes. As such, the level of impairment is most analogous to moderate incomplete paralysis as it involves a combination of these symptoms, which were medically graded at greatest as moderate. The Board considered Dr. G.U.'s assessment, which was clearly evidence in favor of the Veteran's claim. The Board notes that during the time that the Veteran was in receipt of a 10 percent rating, the RO did not conduct a proper compensation and pension examination of the Veteran's right lower extremity radiculopathy. While the Board has considered all other potentially applicable Diagnostic Codes, there is no evidence to support any contention that 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 Board finds that the evidence of record persuasively weighs in favor of a uniform rating of 20 percent. However, the most probative evidence of record persuasively weighs against a higher rating at any point during the appeal. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply and a rating in excess of 20 percent for right lower extremity radiculopathy is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Melanie J. Mann Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson 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.