Citation Nr: 24001044 Decision Date: 01/05/24 Archive Date: 01/05/24 DOCKET NO. 20-20 935 DATE: January 5, 2024 ORDER Entitlement to an evaluation in excess of 10 percent, each, for bilateral lower extremity radiculopathy for the period prior to April 24, 2023, is denied. Entitlement to an evaluation of 40 percent, each, but no higher, from April 24, 2023, for bilateral lower extremity radiculopathy is granted. REMANDED Entitlement to service connection for a left hip condition is remanded. FINDINGS OF FACT 1. The Veteran's bilateral lower extremity radiculopathy more nearly approximated mild incomplete paralysis prior to April 24, 2023. 2. The Veteran's bilateral lower extremity radiculopathy more nearly approximated moderately severe incomplete paralysis after April 24, 2023. CONCLUSIONS OF LAW 1. Prior to April 24, 2023, the criteria for entitlement to a rating in excess of 10 percent for bilateral lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.124a, DC 8520. 2. After April 24, 2023, the criteria for entitlement to a 40 percent rating and no higher for bilateral lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from January 2007 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) from an October 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). It appears that the Veteran is currently employed. Therefore, a claim for a total disability evaluation based upon individual unemployability (TDIU) has not been raised by the record and no action pursuant to Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) is warranted. Increased Rating 1. Entitlement to an evaluation in excess of 10 percent, each, for bilateral lower extremity radiculopathy for the period prior to April 24, 2023, is denied. 2. Entitlement to an evaluation of 40 percent, each, but no higher, from April 24, 2023, for bilateral lower extremity radiculopathy is granted. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Evaluating a service-connected disorder requires review of the entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38C.F.R. §4.3. When 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 will be assigned. 38 C.F.R. § 4.7. When it is not possible to separate the effects of service-connected and non-service-connected disabilities, such effects should be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Veteran seeks entitlement to higher ratings for his bilateral lower extremity radiculopathy as his symptoms are more severe than contemplated by the current rating assigned. The Veteran's service-connected radiculopathy of the bilateral lower extremities are rated under Diagnostic Code 8520. Diagnostic Code 8520 governs paralysis of the sciatic nerve. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted if the incomplete paralysis is severe with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis evidenced by the foot dangling and dropping, no possible active movement below the knee, and weakened or lost flexion of the knee. Descriptive words such as "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence for "equitable and just decisions." See 38 C.F.R. § 4.6. 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. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. An introductory note to the rating schedule for diseases of the peripheral nerves indicates that where the involvement is wholly sensory, the rating should be for the mild, or at most moderate, degree. 38 C.F.R. § 4.124a. Turning to the evidence of record, the Veteran underwent a VA examination for the spine in July 2017. Deep tendon reflex and sensory examination produced normal results. Straight leg testing was negative. The Veteran experienced mild numbness in the bilateral lower extremities. The severity of the radiculopathy was noted to be mild. The Veteran was provided with a VA examination to evaluate her lower extremity radiculopathy in January 2018. It appears that only the right lower extremity was evaluated. Mild numbness was noted in the right lower extremity. Muscle strength was 5/5 and reflex and sensory examination was normal. There was mild incomplete paralysis of the right sciatic nerve. Another peripheral nerves VA examination was conducted in June 2018. There was moderate intermittent pain in the right lower extremity and mild intermittent pain in the left lower extremity. There was mild paresthesias/ dysesthesias in both lower extremities and mild numbness in the right lower extremity. Muscle strength was 5/5 generally except in the right ankle where it was 4/5. Deep tendon reflexes were normal except in the bilateral knees where it was hypoactive. Sensation testing produced normal results outside of decreased sensation in the right thigh. The examiner determined that there was mild incomplete paralysis of the sciatic nerve on both sides. June 2019 VA treatment records indicated that the Veteran experienced pain down her right buttock in the form of numbness. It did not limit her walking capability. Motor strength was noted to be 5/5 bilaterally. Reflexes were normal and sensation was intact and bilaterally symmetrical. Plantar reflexes were absent bilaterally. Vibration sensation was intact. The Veteran underwent another VA examination for radiculopathy in March 2020. The examiner noted mild constant pain, paresthesias/ dysesthesias, and numbness in the right lower extremity. Muscle strength was 5/5. Reflex and sensory examination produced normal results. The examiner noted mild incomplete paralysis of the right sciatic nerve. A VA examination to evaluate the spine was completed in March 2020. Muscle strength was 5/5 and reflex examination produced normal results. Sensory examination was normal and straight leg testing was positive bilaterally. The examiner noted mild intermittent pain, paresthesias/ dysesthesias, and numbness in both lower extremities. The severity of the sciatic radiculopathy was noted to be mild. November 2022 VA treatment records noted bilateral lower extremity numbness and tingling. She reported "Charley horses" in both calves. She denied cramping due to ambulation and denied lower extremity weakness. The Veteran was provided with a final VA examination in April 2023. The examiner noted mild constant pain, moderate paresthesias/ dysesthesias, and moderate numbness in the bilateral lower extremities. Muscle strength was 5/5 bilaterally outside of the ankles where it was 4/5. Reflexes in the ankle were hypoactive and sensation was decreased in the lower leg and feet. The examiner assessed moderately severe incomplete paralysis of the bilateral lower extremities. There was also moderate incomplete paralysis of the left external popliteal nerve. On review of all the evidence, both lay and medical, the Board finds that a rating in excess of 10 percent was not approximated at any time prior to April 24, 2023. In this regard, the bilateral lower extremity radiculopathy was shown to be, at worst, manifested by mild sensory symptoms without any motor involvement. No paralysis was noted. The Board finds the examiner's findings most probative as they are based on diagnostic testing. After April 24, 2023, upon review of the record, and giving the Veteran the benefit of the doubt, the Board finds that a 40 percent disability rating, for moderately severe incomplete paralysis is warranted for the bilateral lower extremity radiculopathy beginning April 24, 2023. The Board notes that the April 2023 VA examination report confirms moderately severe incomplete paralysis of the sciatic nerve in both lower extremities. Resolving reasonable doubt in the Veteran's favor, the Board notes that the findings noted in the April 2023 VA examination report support a 40 percent rating for the Veteran's bilateral lower extremity radiculopathy from the date of the examination. However, the Board does not find a rating in excess of 40 percent is warranted, because the medical and lay evidence does not more nearly approximate the severe criteria. Specifically, the rating criteria severe incomplete paralysis under DC 8520 requires marked muscle atrophy as an element and the evidence weighs against the presence of this symptom. 38 C.F.R. § 4.124a, DC 8520. Muscle atrophy and trophic changes for the lower extremities have not been reported. The Board recognizes that the record reflects radicular involvement by the Veteran's external popliteal nerve on the left side in the April 2023 VA examination. However, the Veteran is not entitled to a separate rating for each nerve affecting her radicular symptoms. 38 C.F.R. § 4.14. Each nerve comprises the sciatic nerve group and affects the same functions in the leg. Providing a separate rating for each nerve within the sciatic nerve branch would violate the rule against pyramiding, as the Veteran would be compensated twice for the same symptomatology. 38 C.F.R. § 4.14. The Board has considered each relevant diagnostic code into consideration for a higher rating during the appeal period; however, the Veteran would not be entitled to a higher rating under DC 8720. Thus, all potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Accordingly, the Board finds that the Veteran is entitled to a 10 percent evaluation prior to April 24, 2023, for her bilateral lower extremity radiculopathy and an evaluation of 40 percent thereafter. REASONS FOR REMAND 1. Entitlement to service connection for a left hip condition is remanded. Remand is required for an adequate VA examination. The threshold question in any claim seeking service connection is whether the Veteran, in fact, has the disability for which service connection is sought. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pain alone, however, can serve as a disability for VA compensation purposes if the pain results in functional impairment that affects earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). VA hip examinations were obtained in January 2018 and April 2020, which do not reflect a diagnosis. The Veteran had consistently reported hip pain during the VA examinations. February 2007 STRs also indicated that the Veteran complained of hip pain. The January 2018 VA examiner denied nexus by noting there was no diagnosed hip condition. The April 2020 VA examiner also denied nexus by stating that there was no evidence of a left hip condition. The examiner noted complaints of increased hip pain over four months in 2007 as well as note of the injury in basic training requiring the use of NSAIDS and crutches. The examiner noted that the Veteran had been having problems with her back that may be related to her hip. The examiners did not; however, address whether there was pain that resulted in functional impairment that affects earning capacity. Additionally, in regard to the hip claim, the examiner stated that the Veteran's current hip symptoms/ complaints were related to the Veteran's service-connected back disability. No diagnosis was provided for the hip disability. Given such, it is unclear whether the bilateral hip symptoms/complaints are separate diagnoses that are secondary to the back disability or just symptoms of the Veteran's back disability diagnosis. Therefore, upon remand, new examinations that clarify any diagnoses, and if applicable, etiology opinions for those diagnoses, must be obtained for these claims, as well as if no diagnosis, if the pain demonstrates functional impairment. The matters are REMANDED for the following action: 1. The examiner is instructed to review and address the April 2020 VA opinion, and clarify whether the Veteran's left hip symptoms/complaints are separate diagnoses, causing functional loss, that are secondary to the back disability diagnosis or just symptoms of the Veteran's back disability diagnosis. For any current diagnosis of a left hip disability, that results in functional loss the examiner is instructed to opine whether it is at least as likely as not (50 percent or greater probability) that the disability is related to his active-duty service. For a finding of pain, a determination of whether there is functional impairment associated with such. (See discussion on Saunders v. Wilkie above, that functional impairment can be a disability). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.