Citation Nr: 23019482 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 19-12 222A DATE: March 29, 2023 ORDER Entitlement to a disability rating in excess of 10 percent for right leg sciatica and radiculopathy (also claimed as polyneuropathy) prior to March 15, 2021 is denied. Entitlement to a disability rating in excess of 20 percent for right leg sciatica and radiculopathy (also claimed as polyneuropathy) from March 15, 2021 is denied. Entitlement to a disability rating in excess of 20 percent for left leg sciatica and radiculopathy (also claimed as polyneuropathy) is denied. FINDINGS OF FACT 1. Prior to March 15, 2021, the Veteran's right leg sciatica and radiculopathy (also claimed as polyneuropathy) is manifest by no more than mild incomplete paralysis. 2. From March 15, 2021, the Veteran's right leg sciatica and radiculopathy (also claimed as polyneuropathy) is manifest by no more than moderate incomplete paralysis. 3. The Veteran's left leg sciatica and radiculopathy (also claimed as polyneuropathy) is manifest by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for right leg sciatica and radiculopathy (also claimed as polyneuropathy) prior to March 15, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to a disability rating in excess of 20 percent for right leg sciatica and radiculopathy (also claimed as polyneuropathy) from March 15, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 3. The criteria for entitlement to a disability rating in excess of 20 percent for left leg sciatica and radiculopathy (also claimed as polyneuropathy) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1996 until his General Discharge under Honorable Conditions in January 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from the November 2018 rating decision based upon the October 11, 2018, request to reopen the Veteran's claims and subsequent rating decision issued in March 2021 by the Regional Office of the United States Department of Veterans Affairs (VA). As a preliminary matter, the Board notes that the prior decisions issued in May 2017 and August 2018 were not appealed within applicable timeframe(s) and are final. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 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 any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Under 38 U.S.C. § 5110(a), the effective date of an increase in a Veteran's disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(b)(2) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." Thus, "the plain language of [section] 5110(b)(2) ...only permits an earlier effective date for an increased disability compensation if that disability increased during the one-year period before the filing of the claim." Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (p). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (r). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155. 1. Entitlement to a disability rating in excess of 10 percent for right leg sciatica and radiculopathy (also claimed as polyneuropathy) prior to March 15, 2021 is denied. 2. Entitlement to a disability rating in excess of 20 percent for right leg sciatica and radiculopathy (also claimed as polyneuropathy) from March 15, 2021 is denied. 3. Entitlement to a disability rating in excess of 20 percent for left leg sciatica and radiculopathy (also claimed as polyneuropathy) is denied. The Veteran asserts that he is entitled to a higher disability rating for his sciatica and radiculopathy (also claimed as polyneuropathy) of the bilateral lower extremities throughout the period on appeal. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. In the absence of an express definition, words are given their ordinary meaning. Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015) (citing Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003)). Therefore, the ordinary meaning of "moderate" is "average in amount, intensity, quality, or degree." Gallagher v. Wilkie, No. 19-1855, 2020 U.S. App. Claims LEXIS 1889 (2020) (quoting New Oxford American Dictionary 1124 (3d ed. 2010). "Mild" is defined as "not violent, severe, or extreme; slight or gentle." Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/ english/. The ordinary meaning of "severe" is "very great [or] intense," or "of a great degree." Id. (quoting, respectively, the NEW OXFORD AMERICAN DICTIONARY 1599 (3d ed. 2010) and MERRIAM-WEBSTER DICTIONARY online (internal citation omitted)). Although Gallagher is not a precedential decision, it is cited as the source for the above-mentioned dictionary definitions. Therefore, the Board defines the terms "severe," "moderate," and "mild" in Diagnostic Code 8520, according to the dictionary definitions set forth above. In this regard, the Board finds that the term "moderately severe" denotes a level of disability that is between being "average in amount, intensity, quality, or degree" (the definition of "moderate") and being "very great [or] intense" (the definite of "severe"), such that it does not more nearly approximate the lower or the higher level of disability. Further, the term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. 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; Note prefacing DCs 8510 through 8730. More specifically, when the involvement of a nerve is "wholly sensory", this means that the nerve is manifested by only sensory based symptoms (such as, for example, numbness, tingling, stabbing or shooting pain, or muscle weakness in the feet). See Miller v. Shulkin, 28 Vet. App. 376, 379 (2017). Moreso, where the nerve involves non-sensory symptoms, this means that the nerve involves symptoms or impairments, such as for example, reflex abnormality, weakness, or muscle atrophy. Nonetheless, even though the above-mentioned Note prefacing DCs 8510 through 8730, under 38 C.F.R. § 4.124a, instructs VA to grant an award that is no higher than a 20 percent disability rating for incomplete paralysis of the 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[, because there] is no support for this proposition in the regulation." Id. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran has been afforded VA examinations in October 2018, September 2019, March 2021, and June 2022. October 2018 Examination The October 2018 VA examiner had the following findings: Regarding impairment of motor functions, the Veteran had normal strength. Regarding trophic changes, the Veteran did not have trophic changes. Regarding sensory disturbance, the Veteran had decreased sensation to light touch in his bilateral thighs/knees, lower leg/ankle, feet/toes. Regarding loss of reflexes, the Veteran had normal reflexes. Regarding pain, the Veteran denied pain, but did report mild paresthesias and/or dysesthesias in the bilateral lower extremities. Regarding muscle atrophy, the Veteran did not have muscle atrophy. Regarding complete paralysis, the Veteran had mild incomplete paralysis of the bilateral sciatic nerves. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance, mild paresthesias and/or dysesthesias, and mild incomplete paralysis. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, loss of reflexes, pain, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. September 2019 Examination The September 2019 VA examiner had the following findings: Regarding impairment of motor functions, the Veteran had normal strength. Regarding trophic changes, the Veteran did not have trophic changes. Regarding sensory disturbance, the Veteran had normal sensation to light touch in his bilateral upper anterior thighs, thighs/knees, lower legs/ankles, feet/toes. The Board notes that the Veteran had decreased sensation to light touch in his bilateral hands/fingers, however the Veteran's service-connected bilateral upper extremity disabilities are not currently before the Board. Regarding loss of reflexes, the Veteran had normal reflexes. Regarding pain, the Veteran denied constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness in his bilateral lower extremities. The Board notes that the Veteran did have moderate constant pain in his right upper extremity and severe intermittent pain (usually dull), severe paresthesias and/or dysesthesias, and numbness in his right upper extremity; however, as noted above, the Veteran's service-connected bilateral upper extremity disabilities are not currently before the Board. Regarding muscle atrophy, the Veteran does not have muscle atrophy. Regarding complete paralysis, the September 2019 VA examiner found that the Veteran had normal lower extremity nerves (including the sciatic nerve). Based on the above, the Board finds that the disability is primarily manifest by no symptoms. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, sensory disturbance, loss of reflexes, pain, muscle atrophy, incomplete paralysis, nor complete paralysis. The Board thus finds that the level of impairment is most analogous to no current disability. March 2021 Examination The March 2021 VA examiner had the following findings: Regarding impairment of motor functions, the Veteran had normal strength. Regarding trophic changes, the Veteran did not have trophic changes. Regarding sensory disturbance, the Veteran had decreased sensation for light touch in his bilateral lower legs/ankles and feet/toes. Regarding loss of reflexes, the Veteran had hypoactive reflexes in his bilateral ankles. Regarding pain, the Veteran reported moderate constant pain (may be excruciating at times), moderate intermittent pain (usually dull), moderate paresthesias and/or dysesthesias, and numbness in his bilateral lower extremities. Regarding muscle atrophy, the Veteran did not have muscle atrophy. Regarding complete paralysis, the March 2021 VA examiner found that the Veteran had moderate incomplete paralysis of the bilateral sciatic nerves. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance, loss of reflexes, pain, and incomplete paralysis. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing 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. June 2022 Examination The June 2022 VA examiner had the following findings: Regarding impairment of motor functions, the Veteran had normal strength. Regarding trophic changes, the Veteran did not have trophic changes. Regarding sensory disturbance, the Veteran had decreased sensation to light touch in his lower legs/ankles and feet/toes. Regarding loss of reflexes, the Veteran's ankle reflexes were absent, with the remaining reflexes being normal. Regarding pain, the Veteran reported moderate constant pain (may be excruciating at times), moderate intermittent pain (usually dull), moderate paresthesias and/or dysesthesias, and numbness in his bilateral lower extremities. Regarding muscle atrophy, the Veteran did not have muscle atrophy. Regarding complete paralysis, the Veteran had moderate incomplete paralysis of his bilateral sciatic nerves. Based on the above, the Board finds that the disability is primarily manifest by sensory disturbance, loss of reflexes, pain, and incomplete paralysis. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis of the sciatic nerves. Therefore, the Board finds the following: For the issue of entitlement to a disability rating in excess of 10 percent for right leg sciatica and radiculopathy (also claimed as polyneuropathy) prior to March 15, 2021, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a disability rating in excess of 10 percent for right leg sciatica and radiculopathy (also claimed as polyneuropathy) prior to March 15, 2021. As the evidence of record persuasively weighs against a disability rating in excess of 10 percent for right leg sciatica and radiculopathy (also claimed as polyneuropathy) prior to March 15, 2021, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). For the issue of entitlement to a disability rating in excess of 20 percent for right leg sciatica and radiculopathy (also claimed as polyneuropathy) from March 15, 2021, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a disability rating in excess of 20 percent for right leg sciatica and radiculopathy (also claimed as polyneuropathy) from March 15, 2021. As noted above, if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)). Here, the evidence shows that the increase is shown to have occurred in the March 15, 2021, VA examination and therefore, the effective date is appropriate. As the evidence of record persuasively weighs against a disability rating in excess of 20 percent for right leg sciatica and radiculopathy (also claimed as polyneuropathy) from March 15, 2021, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). For the issue of entitlement to a disability rating in excess of 20 percent for left leg sciatica and radiculopathy (also claimed as polyneuropathy), the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a disability rating in excess of 20 percent for left leg sciatica and radiculopathy (also claimed as polyneuropathy). (CONTINUED ON THE NEXT PAGE) As the evidence of record persuasively weighs against a disability rating in excess of 20 percent for left leg sciatica and radiculopathy (also claimed as polyneuropathy), the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Martin T. Mitchell Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, 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.