Citation Nr: 23012829 Decision Date: 03/02/23 Archive Date: 03/02/23 DOCKET NO. 19-02 606 DATE: March 2, 2023 ORDER An initial disability rating of 20 percent prior to July 10, 2019, for service-connected sciatic radiculopathy of the left lower extremity is granted, subject to the regulations governing the payment of monetary awards. An initial disability rating in excess of 20 percent beginning on July 10, 2019, for service-connected sciatic radiculopathy of the left lower extremity is denied. FINDING OF FACT It is reasonably shown that for the entire period on appeal the Veteran's service-connected sciatic radiculopathy of the left lower extremity has been manifested by, at worst, moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent prior to July 10, 2019, but no higher, for sciatic radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for an initial rating in excess of 20 percent beginning on July 10, 2019, for service-connected sciatic radiculopathy of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served in the Army from June 1988 to September 1988, from November 2001 to May 2002, and from August 2004 to February 2007. In April 2022, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In September 2022, the Board of Veterans' Appeals (Board) remanded the case for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial disability rating in excess of 10 percent prior to July 10, 2019, and in excess of 20 percent therefrom for service-connected sciatic radiculopathy of the left lower extremity The Veteran's sciatic radiculopathy of the left lower extremity is currently rated 10 percent prior to July 10, 2019, and 20 percent thereafter under 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Veteran argues his disability warrants higher disability ratings. Under DC 8520, for the sciatic nerve, a 10 percent disability rating is assigned for mild, incomplete paralysis; a 20 percent disability rating is assigned for moderate, incomplete paralysis; a 40 percent disability rating is assigned for moderately severe, incomplete paralysis; and a 60 percent rating is assigned for severe, incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124a. Terms such as "mild", "moderate", and "severe" are not defined in the rating schedule. Accordingly, within these confines set down by the caselaw from the United States Court of Appeals for Veterans Claims (Court), the Board will use relevant dictionary definitions of "mild," "moderate," or "severe" in analyzing the Veteran's entitlement to a higher ratings for his service-connected sciatic nerve peripheral neuropathy of the left lower extremity below. In this regard, the Merriam-Webster Dictionary definition of "mild" includes "moderate in action or effect," "not being or involving what is extreme," and "not severe" or temperate. The Merriam-Webster Dictionary definition of "moderate" includes "temperate," "tending toward the mean or average amount or dimension," "not violent, severe, or intense," and "limited in scope or effect." Finally, the Merriam-Webster Dictionary definition of "severe" includes "causing discomfort or hardship," "very painful or harmful," "requiring great effort," and "of a great degree." See also 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1303. Turning to the relevant evidence of record, the Veteran was afforded a VA examination in April 2017 for the lumbar spine, in which it was noted the Veteran had mild left extremity radiculopathy. Private chiropractic clinic records from April 2015 and May 2015 describe the Veteran's low back symptoms as sharp pain radiating down to the left calf, left hip and left knee. Additionally, calf pain with symptoms including constant numbness and tingling were noted. Private treatment records from May 2015 also report radiating pain down the Veteran's left lower extremity, which was noted to be worsening. The pain was described as a sciatic distribution all the way down to his feet, with complaints of numbness and tingling in his toes. It was noted that the Veteran avoided sitting on his left buttock because of the intensity of the pain. A left lumbar transforaminal epidural nerve block was performed in May 2015 to treat the Veteran's severe pain in the left lower extremity. In a July 2017 statement, the Veteran reported that he was having increasing problems with his sciatica on the left side of his body. He indicated having sudden onset of severe pain in his left leg, accompanied by loss of feeling, tingling and numbness in the bottom of his foot. The Veteran reported undergoing a spinal epidural nerve block procedure which provided relief from the pain, but noted that he was beginning to experience constant muscle spasms in the left calf muscle and left buttock. In the Veteran's January 2019 VA Form 9, substantive appeal, he reported that his sciatic nerve issues had increased since his initial filing in April 2017. Specifically, he reported experiencing increasing levels of muscle twitching/spasms in the left leg as well as increased cramping in the left calf muscle and thigh muscle while laying down, standing, and walking. He also described temperature differences between his left and right feet, with his left foot feeling colder than the right. In February 2019, the Veteran underwent a diagnostic electromyography (EMG) for the nerves which showed chronic degenerative disease throughout his lumbar spine with disc bulges and neuropathy. His options of physical therapy and chiropractic care for pain management injections were documented. A July 2019 VA Peripheral Nerves Conditions Disability Benefits Questionnaire (DBQ) reported left lower extremity radicular symptoms consisting of moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness. The examiner noted the Veteran suffered from mild incomplete paralysis of the left lower extremity. However, the Board observes on examination of the Veteran's lumbar spine, also in July 2019, the VA examiner characterized the Veteran's radiculopathy associated with his lumbar spine as moderate. The examiner noted symptoms including moderate constant pain, severe intermittent pain, moderate paresthesias and moderate numbness of the left lower extremity. The July 2019 VA Peripheral Nerve DBQ associated with the lumbar spine examination also reported that the Veteran's symptoms of left lower extremity sciatic radiculopathy had begun with symptoms of muscle spasms and twitching in the left leg in the calf area and that the Veteran now had increased spasms from the center of the left thigh to the left ankle. It was also noted that the Veteran's left foot seemed to be colder than the right foot and that he experienced frequent cramping in the left thigh and left calf. It was noted that the Veteran had completed physical therapy for the condition and was scheduled to start chiropractic treatments. As for the impact of the condition on the Veteran's functioning, including occupational and ordinary activities, it was noted that the Veteran had indicated the spasms were constant in his left leg. The examiner stated the Veteran would also experience severe cramps without warning, which would leave the muscles sore. Thereafter, the Veteran was afforded another VA examination for the lumbar spine in December 2019. It was noted that the Veteran had moderate radiculopathy of the left lower extremity. The symptoms of his left lower extremity radiculopathy included moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. At the April 2022 Board hearing, the Veteran described experiencing constant spasms of his left calf muscle and occasional spasms in his left thigh as well as occasional numbness in the bottom of his left foot and a noticeable temperature difference between his left and right foot. He testified that his left foot was normally colder than his right foot. Additionally, the Veteran reported his spasms were often accompanied by cramping, which he explained was "almost like flipping on a light switch and tuning off the light switch." The Veteran stated they felt more like an electrical impulse and noted that when the cramps subsided, his calf muscle or thigh would be sore for two to three days. The Veteran also testified that he suffered from flare-ups "at least once a month, sometimes more, and sometimes a lot more" with cramping/spasms as well as pain and mobility issues. Sometimes, he indicated he would have spasms as much as once a week, or spasms that were non-stop, and noted that his calf muscle was twitching even during the hearing. Additionally, the Veteran testified that he suffered from cramping sometimes weekly, but at least every other week and generally throughout the year. Regarding treatment for his sciatic radiculopathy of the left lower extremity, the Veteran testified that the last in-person visit he had had with his primary care physician was around 2019 because of the restrictions surrounding COVID-19. He reported managing his pain symptoms on his own with medication since his last appointments around July 2019, and stated that he did not recall having any visits with his primary care physician for a couple of years, but noted that he would be having an upcoming visit in May 2022. In light of the Veteran's hearing testimony, this matter was remanded in September 2022 to obtain a copy of the Veteran's VA treatment records for the period from July 2020. VA treatment records from December 2017 to September 2022 were subsequently obtained; these reflect the Veteran's continuous report of radiating pain in his left lower extremity. After reviewing the foregoing, the Board finds that prior to July 10, 2019, the Veteran's symptoms of his left lower extremity radiculopathy more closely approximated moderate symptomatology, as opposed to mild. In pertinent part, while the April 2017 VA examination characterized the Veteran's left lower extremity radiculopathy as mild, his private treatment records showed continuous complaints of radiating pain as well as constant muscle spasms in the left calf muscle and left buttock. Numbness and tingling in the left lower extremity were also reported prior to July 10, 2019. Accordingly, for the period prior to July 10, 2019, the evidence is at least in equipoise as to whether the criteria for a 20 percent rating for left lower extremity radiculopathy were met. However, there is no evidence of severe radicular symptoms for this period to warrant a higher 40 percent rating. In fact, for the entirety of the appeal period (including the period from July 10, 2019), the competent evidence of record supports a finding that the Veteran suffers from moderate symptoms associated with his left lower extremity radiculopathy. In that regard, the 2019 VA examiner reported the Veteran as having moderate constant pain, severe intermittent pain, moderate paresthesias and moderate numbness of the left lower extremity associated with his left lower extremity radiculopathy. Moreover, the July 2019 VA examiner concluded the Veteran's radiculopathy associated with his lumbar spine was best described as moderate. As noted elsewhere, the Board defines "moderate" in this appeal as "temperate," "tending toward the mean or average amount or dimension," "not violent, severe, or intense," and "limited in scope or effect." There is no indication in the record, including his more recent VA treatment records, that the symptomatology attributable to the Veteran's service-connected sciatic radiculopathy of the left lower extremity exceeded this definition. Accordingly, a higher 40 percent rating which requires evidence of moderately severe symptoms is not warranted. The Board acknowledges that during the April 2022 Board hearing, the Veteran reported suffering from flare-ups as a result of his sciatic radiculopathy of the left lower extremity, and that he experienced spasms and cramping in the left lower extremity, as well as pain and mobility limitations. These symptoms are consistent with what was described and found during the 2019 VA examinations, and thus do not result in the assignment of a higher rating. Instead, they are considered and contemplated by the 20 percent rating that has now been assigned for the entirety of the appeal period. Finally, the Board recognizes that the most recent VA examination in this case was conducted in 2019. However, despite the hearing testimony that the Veteran provided in April 2022, he has not asserted and the evidence (to include the additional VA treatment records, which were associated with the record following the Board's September 2022 remand) does not otherwise show that his left lower extremity radiculopathy has worsened since the prior examination. In fact, at the April 2022 Board hearing, when questioned specifically about whether his symptoms had worsened since his last examination, the Veteran responded that the symptoms that he was currently experiencing as a result of his sciatic radiculopathy of the left lower extremity symptoms were approximately the same as at the time of his last VA examination in July 2019. The passage of time alone, without an allegation of worsening since the last VA examination, does not warrant a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Thus, additional development is not required. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.