Citation Nr: 23020196 Decision Date: 03/31/23 Archive Date: 03/31/23 DOCKET NO. 07-34 282 DATE: March 31, 2023 ORDER Entitlement to a rating in excess of 10 percent prior to November 21, 2011, for service connected left lower extremity radiculopathy is denied. Entitlement to a 20 percent rating, but no higher, for service connected left lower radiculopathy effective on and after November 21, 2011, is granted. REMANDED Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to November 21, 2011, the Veteran's left lower extremity radiculopathy was shown to be manifested by no more than mild incomplete paralysis of the sciatic nerve. 2. Granting the benefit of the doubt, on and after November 21, 2011, the Veteran's left lower extremity radiculopathy has been shown to be manifested by no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to November 21, 2011, for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 2. The criteria for a rating of 20 percent, but no higher, on and after November 21, 2011, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1977 to November 1977. These matters were last before the Board of Veterans' Appeals (Board) panel in September 2022, whereupon the Board remanded the matters presently before the Board for further development. The matters have now come back before the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stem from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran is service connected for left lower extremity radiculopathy (LLE), rated as 10 percent disabling and secondary to the service-connected back disability. He seeks an initial rating in excess of 10 percent. The rating in this case was assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520, corresponding to complete or incomplete paralysis of the sciatic nerve. Under this section, a disability rating of 10 percent is awarded for mild incomplete paralysis of the sciatic nerves, while a 20 percent rating is warranted for moderate incomplete paralysis and a 40 percent rating is warranted for incomplete paralysis of the sciatic nerves that is moderately severe in nature. A 60 percent rating is warranted for incomplete paralysis that is severe with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. In rating diseases of the peripheral nerves, 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The words "mild," "moderate" and "severe," as used in the various diagnostic codes, are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive. Instead, all evidence must be evaluated. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. During the period on appeal, the Veteran underwent a VA examination for back conditions in November 2006. Here, there was no evidence of radiating pain. The examiner noted the Veteran suffered from decreased sensation along the medial aspect of his right foot following removal of a mole in a non-dermatomal distribution. See November 2006 VA Compensation and Pension Exam Report for Spine. In December 2006, it was noted that the Veteran reported back pain radiating sometimes. See December 2006 Radiographic Report. In February 2007, a VA neurosurgeon noted the Veteran was sensitive to touch on the bottom of his feet and there was mild diminished sensation to pinprick up the ankles bilaterally. See February 2007 VA Neurosurgery Consult. It was also noted that the Veteran has good muscle function, strong strength, and no weakness. See id. During a May 2009 VA general examination, the examiner noted that the Veteran's lower extremities were normal. The examiner noted the Veteran's back condition did not result in radiculopathy. See May 2009 VA Compensation and Pension Examination General Medical Examination. In November 2011, the Veteran sought treatment with VA for an initial kinesiotherapy consult for pain management. Here, the examiner found his LLE had decreased strength, and range of motion was within functional limits but not normal limits. The examiner noted that the Veteran reported pain in several areas, including his LLE. The examiner noted the Veteran's lower extremity exhibited weakness. When pressure was applied to his lower extremity, there was no motion or movement. See November 2011 VA Initial Kinesiotherapy Consult. In a February 2016 VA examination for back conditions, the examiner noted the sensory exam resulted in decreased lower leg/ankle sensory. See February 2016 VA Back Conditions Disability Benefits Questionnaire (DBQ). In an April 2017 VA examination for back conditions, the Veteran's reflexes of the knee were hypoactive, and sensory in his foot/toes was decreased. See April 2017 VA Back Conditions DBQ. The January 2018 VA back conditions examination reported a diagnosis of LLE mild intermittent pain, paresthesias, and/or dysesthesias, and numbness. The examiner found the Veteran's LLE radiculopathy amounted to mild severity. See January 2018 VA Back Conditions DBQ. The Veteran's most recent VA back conditions examination was in July 2020. Here, the examiner noted moderate intermittent pain due to radiculopathy due to the sciatic nerve. The Veteran's LLE reflex exam resulted in a hypoactive knee. See VA Back Conditions DBQ. The private treatment records found there was evidence of left leg instability, decreased sensation distal to the mid shin bilateral with a pinprick, superimposed decreased sensation throughout his LLE with difficulty maintaining strength with his LLE. Reflexes were absent at the knees and ankles. The doctor found that the abnormal study was suggestive of radiculopathy involving the L4 and possibly L5 nerve root. See March 2017 Private Progress Notes. Private treatment records also established weakness in the Veteran's LLE making it difficult to walk. He was unable to sustain prolonged standing or walking and had episodes of nearly falling. See May 2017 Private Progress Notes. 1. Prior November 21, 2011 - 10 percent Upon consideration of the evidence, the Board finds that a rating in excess of 10 percent prior to November 21, 2011, is not warranted for LLE radiculopathy. Prior to November 21, 2011, the Veteran inconsistently reported radiating pain through his LLE. During the November 2006 VA back conditions examination, the Veteran reported that his back did not radiate pain to his lower extremities. Furthermore, the only decreased sensation was in his right foot, which was due to a surgery he had to remove a mole. In a December 2006 VA treatment record, the Veteran reported that his back pain radiates sometimes. Again, in February 2007, the Veteran did not report any radicular symptoms during a neurosurgery consult. Upon treatment, there was no evidence of radicular symptoms noted. While the wholly sensory nature of the Veteran's left lower extremity radicular symptoms does not automatically preclude an increase to 20 percent, there is nothing in the claim file to suggest that the condition was more than mild in severity. In so finding the above, the Board notes that the Veteran is competent to report on symptoms and credible to the extent that he sincerely believes he is entitled to higher ratings. In those portions of the decision where his claims have been denied, however, his competent and credible lay evidence is outweighed by competent and credible medical evidence that evaluates the extent of the LLE radiculopathy based on objective data coupled with the lay complaints. In this regard, the Board notes that the medical professionals have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the medical evidence regarding the degree of his LLE radiculopathy. 2. Effective November 21, 2011 - 20 percent Upon review of the evidence, the Board finds a 20 percent rating, but no more, is warranted for the LLE on and after November 21, 2011. The Board finds that the VA medical evidence notes the Veteran exhibited weakness, and, when pressure was applied, there was no motion or movement of the LLE. See November 2011 VA Initial Assessment Consult Results. Furthermore, the Board finds that the evidence since this date is consistent in establishing weakness and decreased reflexes. The Board finds that there is copious documentation of the Veteran reporting that he experiences radiating pain into his LLE as well. As such, the Board finds that it is more appropriate to characterize the LLE radiculopathy as moderate in severity effective November 21, 2011, which is when the evidence establishes worsening of his condition. The Board does not find that a rating in excess of 20 percent for the LLE radiculopathy is warranted at any point during the appeal period. The evidence does not support a finding that his LLE amounted to moderately severe or severe radiculopathy. Specifically, the VA treatment records and examinations consistently noted the Veteran's LLE to be of not more than moderate severity. The Board finds a rating in excess of 20 percent is not warranted as there is nothing in the record to suggest that the LLE radiculopathy is more than moderate in severity. In so finding the above, the Board notes that the Veteran is competent to report on symptoms and credible to the extent that he sincerely believes he is entitled to a higher rating. In those portions of the decision where his claims have been denied, however, his competent and credible lay evidence is outweighed by competent and credible medical evidence that evaluates the true extent of the LLE radiculopathy based on objective data coupled with the lay complaints. In this regard, the Board notes that the medical professionals have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the medical evidence regarding the degree of his LLE radiculopathy. In summation, a 20 percent rating, but no more, is warranted for LLE radiculopathy on and after November 21, 2011. REASONS FOR REMAND 1. TDIU Unfortunately, the Board notes that it does not currently have sufficient information to adjudicate the Veteran's claim for TDIU. Specifically, the Board does not have adequate information regarding the Veteran's employment history. The Board notes there is no VA Form 21-8940 of record, nor any identified employer. The Veteran has indicated in the record that his service-connected disabilities were the reason he was no longer employed. See April 15, 2010, Hearing Transcript. It does not appear that the RO has attempted to obtain a VA Form 21-8940 regarding the Veteran's claim for TDIU. The Veteran has not completed Veterans Application for Increased Compensation Based on Unemployability, VA Form 21-8940, or otherwise provided necessary employment information to adjudicate the claim for TDIU. He should be provided the form and allowed an opportunity to return it. Furthermore, the Board finds the RO should attempt to contact any employer listed within the VA Form 21-8940, if possible. The matters are REMANDED for the following action: Ask the Veteran to complete a Veterans Application for Increased Compensation Based on Unemployability, VA Form 21-8940, and/or otherwise provide the relevant employment information regarding his claim for TDIU. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Glaeser 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.