Citation Nr: 23013183 Decision Date: 03/03/23 Archive Date: 03/03/23 DOCKET NO. 18-31 933 DATE: March 3, 2023 ORDER Entitlement to a staged initial rating for sciatic radiculopathy of the right lower extremity higher than 20 percent prior to November 7, 2022, and higher than 40 percent thereafter is denied. FINDINGS OF FACT 1. Prior to November 7, 2022, the Veteran's radiculopathy of the right lower extremity was manifested by moderate incomplete paralysis of the sciatic nerve. 2. From November 7, 2022, the Veteran's radiculopathy of the right lower extremity is manifested by moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to a staged initial rating higher than 20 percent for sciatic radiculopathy of the right lower extremity prior to November 7, 2022, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 8520. 2. The criteria for entitlement to a staged initial rating higher than 40 percent for sciatic radiculopathy of the right lower extremity from November 7, 2022, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1983 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in May 2022. A transcript of that hearing is of record. This matter was remanded for additional development in August 2022. The Board finds there has been substantial compliance with its remand directives for the claim decided herein. Stegall v. West, 11 Vet. App. 268 (1998). A November 2022 rating decision assigned a 40 percent rating for sciatic radiculopathy of the right lower extremity effective November 7, 2022, and granted service connection for right and left knee disabilities. 1. Entitlement to a staged initial rating for sciatic radiculopathy of the right lower extremity higher than 20 percent prior to November 7, 2022 The Veteran contends that he should be assigned a rating higher than 20 percent for sciatic radiculopathy of the right lower extremity prior to November 7, 2022, because he believes his treatment records show moderately severe nerve damage. He has not identified any specific treatment record that he believes supports this contention. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's radiculopathy of the right lower extremity has been rated under Diagnostic Code (DC) 8520. Under DC 8520, a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. Complete paralysis of the sciatic nerve such that the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost, is assigned an 80 percent rating. 38 C.F.R. § 4.124a, DC 8520. The rating schedule as to diseases of the peripheral nerves indicates that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In Miller v. Shulkin, the Court held that "[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level." 28 Vet. App. 376 (2017). Words such as "mild," "slight," "moderate," "marked," and "severe" are not defined in the VA Rating Schedule. 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. VA's Adjudication Procedures Manual (M21-1) provides benchmarks for mild, moderate, moderately severe, and severe peripheral nerve conditions. Although the Board is not bound by the M21-1, the standards provided in the M21-1 are "relevant guidance promulgated for the purpose of facilitating the efficient and proper resolution of claims," which the Board must consider and address as part of its duty to provide a reasoned explanation for its decision. Healey v. McDonough, 33 Vet. App. 312 (2021); Overton v. Wilkie, 30 Vet. App. 257 (2018). The Board finds these definitions to be instructive. Per the M21-1, moderate is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment, in which symptoms will likely be described by the claimants and graded as significantly disabling, and in which a larger area in the nerve distribution may be affected. Other symptom combinations that may fall into the moderate category include the following: combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished hyperactive reflexes (with or without sensory impairment) graded as medically moderate. M21-1, V.iii.12.A.2.c. A "moderately severe" evaluation level includes motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability, and may include atrophy. To be described as "severe," it would be expected that there is motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy, and marked muscular atrophy is expected in cases involving the sciatic nerve. Id. The Board finds that the Veteran's sciatic radiculopathy of the right lower extremity is most appropriately described as moderate prior to November 7, 2022. During this period, the Veteran's radiculopathy was almost wholly sensory. September 2016 and May 2018 back examinations showed normal muscle strength, and normal deep tendon reflexes. A May 2018 disability benefits questionnaire (DBQ) filled out by a private physician also showed normal muscle strength and normal deep tendon reflexes, as well as normal sensation testing. Therefore, to the extent that the functional impairment recorded in these examinations is attributed to radiculopathy of the right lower extremity specifically the report of difficulty negotiating stairs or ladders and discomfort with prolonged sitting or driving, which is noted in the May 2018 VA examination that impairment is the result of wholly sensory symptoms. As noted above, regulations indicate that when involvement is wholly sensory, the rating should be at most moderate. 38 C.F.R. § 4.124a. The only non-sensory manifestations during this time period were the November 2019 examination finding that the Veteran had decreased strength in the bilateral hips and knees and a January 2021 VA examination finding hypoactive deep tendon reflexes. In November 2019, the Veteran's hip flexion and knee extension muscle strength was rated as 4/5, meaning active movement against some resistance. The examination rates strength on a scale from 0/5, indicating no muscle movement, to 5/5, indicating normal strength. The 4/5 strength noted in the record is thus the least severe level of decreased strength. Therefore, this examination indicates a combination of significant sensory changes and reflex or motor changes of a lower degree, which is specifically contemplated in the definition of moderate. Additionally, the Veteran's muscle strength was normal during the January 2021 examination, which indicates that this weakness is intermittent rather than constant. Therefore, the Board finds that it would not be appropriate to describe this level of weakness as representative of a high level of limitation or disability, as is required to meet the definition of "moderately severe." The January 2021 examination found hypoactive deep tendon reflexes with the notation of 1+. Reflex impairment such as diminished reflexes, with or without sensory impairment, graded as medically moderate are contemplated by the definition of moderate neurological impairment. In this case, the Veteran's sensory examination was normal at the time of the January 2021 examination, as was muscle strength testing. The fact that the Veteran's hypoactive reflexes were accompanied by normal sensory and muscle strength testing indicates that the Veteran's overall disability picture is of a more moderate grade. The Veteran's functional limitations at the time were that he constantly used a cane due to radiculopathy, and that he reported severe pain affecting his ability to work as well as difficulty walking and standing for long periods. The Board finds that this level of impairment does not constitute a high level of limitation as the Veteran appears to have been able to walk or stand for short or moderate periods with the assistance of his cane. The Board recognizes that the Veteran's intermittent pain was rated as severe in January 2021 and that this pain affected his ability to work, but the definition of moderately severe neuropathy indicates a high level of limitation or disability due to motor and/or reflex impairment, rather than pain. Significantly disabling symptoms such as pain are contemplated by the moderate rating the Veteran has already been assigned. The Veteran argued in his March 2017 Notice of Disagreement (NOD) that his treatment records should show nerve damage that is moderately severe. However, he has not identified any specific record that he believes supports this argument, and the Board's review of the record does not find records demonstrating motor and/or reflex impairment at a grade reflecting a high level of limitation. As the Veteran's symptoms of sciatic radiculopathy of the right lower extremity are almost wholly sensory; the non-sensory symptom of weakness was intermittent and received the mildest grade; and the Veteran's hypoactivity was accompanied by normal sensation testing in January 2021 and did not reflect a high level of limitation, the Board finds that his symptoms do not meet the criteria for moderately severe impairment during this time period. Therefore, entitlement to a rating higher than 20 percent for sciatic radiculopathy of the right lower extremity prior to November 7, 2022, is denied. 2. Entitlement to a staged initial rating for sciatic radiculopathy of the right lower extremity higher than 40 percent from November 7, 2022 The Board finds that the Veteran's sciatic radiculopathy of the right lower extremity does not meet the criteria for severe incomplete paralysis of the sciatic nerve with marked muscle atrophy. As noted above, the regulations indicate that a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. 38 C.F.R. § 4.124a, DC 8520. According to the M21-2 Manuel, to be described as "severe," it would be expected that there is motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy, and marked muscular atrophy is expected in cases involving the sciatic nerve. M21-1, V.iii.12.A.2.c. In this case, the November 2022 VA examination indicates no muscle atrophy. Neither the medical record nor the lay statement submitted by the Veteran in November 2022 demonstrate or allege any muscle atrophy, much less the marked atrophy required by the rating criteria. Therefore, the Veteran's sciatic radiculopathy of the right lower extremity does not meet the requirements for the assignment of a rating higher than 40 percent after November 7, 2022. Entitlement to a rating higher than 40 is thus denied. As to the Veteran's assertion in the November 2022 lay statement that the pain from his lower lumbar spine also affects his upper back and shoulder regions, the Board notes that this appeal is limited to the rating assigned for sciatic radiculopathy of the right lower extremity. Radiculopathy of the upper extremities is not on appeal at this time. If the Veteran would like to claim service connection for radiculopathy of the upper extremities secondary to his service-connected degenerative arthritis of the spine, he should file a claim with the Agency of Original Jurisdiction (AOJ). In deciding the claims, the Board has also considered the Veteran's lay statements that his disability is worse than currently evaluated. He is competent to report symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the right lower extremity radiculopathy has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.