Citation Nr: A24029735
Decision Date: 06/06/24	Archive Date: 06/06/24

DOCKET NO. 210121-136608
DATE: June 6, 2024

ORDER

Entitlement to a rating more than 10 percent for radiculopathy, left lower extremity from January 20, 2020, is denied.

Entitlement to a rating more than 10 percent for radiculopathy, right lower extremity from January 20, 2020, is denied.

FINDINGS OF FACT

1. From January 20, 2020, the Veteran's left lower extremity presented as mild incomplete paralysis of the sciatic, femoral, internal popliteal, external popliteal, and posterior tibial nerves.

2. From January 20, 2020, the Veteran's right lower extremity presented as mild incomplete paralysis of the sciatic, femoral, internal popliteal, external popliteal, and posterior tibial nerves.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating more than 10 percent for radiculopathy, left lower extremity from January 20, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DCs 8520, 8521, 8524, 8525, 8526.

2. The criteria for entitlement to a rating more than 10 percent for radiculopathy, right lower extremity from January 20, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DCs 8520, 8521, 8524, 8525, 8526.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from December 1968 to August 1972 and from April 1973 to July 1989.

The rating decision on appeal was issued in September 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.  

In April 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an April 2020 decision.  In September 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior April 2020 decision.  

In the January 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the April 2020 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran [or representative] with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

The Board notes that in a May 2020 correspondence, the Veteran, through his attorney, contends that the radiculopathy evaluations assigned in a June 2017 rating decision are clearly and unmistakably erroneous (CUE). The issue of clear and unmistakable error is not before the Board.  When CUE is alleged with a rating decision, the CUE motion is filed with the AOJ and first adjudicated by the AOJ. The Veteran did not specifically argue CUE until his May 2020 correspondence, and the AOJ has not adjudicated the Veteran's CUE claim. Accordingly, the Board does not have jurisdiction over whether the ratings assigned in the June 2017 rating decision are CUE. See Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). Should the Veteran wish to initiate a CUE claim, this decision does not preclude the filing of the appropriate form(s) to initiate a motion seeking revision of the June 2017 rating decision granting service connection for radiculopathy, left and right lower extremity sciatic nerve, and radiculopathy, left and right lower extremity femoral nerve, and assigning 10 percent ratings effective March 29, 2017.

Increased Ratings

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994).

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The United States Court of Appeals for Veterans Claims (CAVC or "the Court") held in Correia v. McDonald, 28 Vet. App. 158 (2016) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. When rating musculoskeletal disabilities based on limitation of motion, the Board must consider functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. The Board must also consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Nonetheless, even when the background factors listed in 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 are relevant when rating a disability, the rating is assigned based on the extent to which motion is limited. A separate or higher rating under 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 is not appropriate. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017).

1. Entitlement to a rating more than 10 percent for radiculopathy, left lower extremity from January 20, 2020

2. Entitlement to a rating more than 10 percent for radiculopathy, right lower extremity from January 20, 2020

The Veteran contends that his left and right lower extremity radiculopathy is worse than currently rated.

The Veteran currently has 10 percent ratings under DC 8520 for left and right lower extremity radiculopathy (sciatic nerve), and 10 percent ratings under DC 8526 for left and right lower extremity radiculopathy (femoral nerve), from March 29, 2017. See March 2024 Codesheet. The applicable diagnostic codes are 8520, 8521, 8524, 8525, and 8526.

Diagnostic Code 8520 provides for an 80 percent evaluation where there is complete paralysis of the sciatic nerve, with the foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or lost. Lower ratings are assigned for incomplete paralysis of the sciatic nerve: a 60 percent evaluation for severe incomplete paralysis, with marked muscular atrophy; a 40 percent evaluation for moderately severe incomplete paralysis; a 20 percent evaluation for moderate incomplete paralysis; and a 10 percent evaluation for mild incomplete paralysis. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 

Under DC 8521, a 10 percent rating is assigned for mild incomplete paralysis of the external popliteal nerve. A 20 percent rating is assigned for moderate incomplete paralysis of the external popliteal nerve. A 30 percent rating is assigned for severe incomplete paralysis of the external popliteal nerve. A 40 percent rating is assigned for complete paralysis of the external popliteal nerve, with foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; and anesthesia covers entire dorsum of foot and toes.

DC 8524 assigns ratings for paralysis of the internal popliteal (tibial) nerve and provides a 10 percent rating for mild incomplete paralysis; a 20 percent rating for moderate incomplete... sole can move; in lesions of the nerve high in popliteal fossa, and plantar flexion of foot lost.

Under DC 8525, complete paralysis of the posterior tibial nerve, which is rated as 30 percent disabling, contemplates paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired. Ratings of 10 percent, 10 percent and 20 percent are assigned for incomplete paralysis that is mild, moderate, or severe in degree, respectively.

Under DC 8526, complete paralysis of the femoral nerve, which is rated as 40 percent disabling, contemplates paralysis of the quadriceps extensor muscles. Ratings of 10 percent, 20 percent and 30 percent are assigned for incomplete paralysis that is mild, moderate, or severe in degree, respectively.

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 United States Court of Appeals for Veterans Claims (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).

The words "mild," "moderate," and "severe," as used in the various diagnostic codes, are not defined in the rating schedule. The use of these terms by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. 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, mild is assigned for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis.

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.

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. 

Turning to the evidence, the Veteran underwent a VA examination for peripheral nerve conditions in February 2020. See February 2020 VA Examination. The examiner confirmed the Veteran's diagnoses of left and right lower extremity radiculopathy and noted that the Veteran's symptoms temporarily improved after lumbar surgery, but then worsened over two years, presenting with constant pain at a 3 to 4 level to both legs and feet, which was worsened with activity such as waking or driving to an 8 to 9 level. The examiner noted that the Veteran had intermittent numbness and tingling, and his balance was affected. On examination, the Veteran was found with moderate bilateral lower extremity intermittent pain, mild bilateral lower extremity paresthesias and/or dysesthesias, and mild bilateral lower extremity numbness. The Veteran was found to have bilateral mild incomplete paralysis of the sciatic nerve, external popliteal (common peroneal) nerve, musculocutaneous (superficial peroneal) nerve, anterior tibial (deep peroneal) nerve, internal popliteal (tibial) nerve, posterior nerve, anterior crural (femoral) nerve, internal saphenous nerve, and obturator nerve. The external cutaneous nerve of the high and the illio-inguinal nerve were normal bilaterally.

These findings are corroborated by the Veteran's VA treatment records, wherein he reported a fall on February 18, 2019, for which he went to the emergency room, right leg pain at a 3 level, and increase in pain with some numbness to both legs in 2019, similar to his pre-surgery symptoms. See 2019 VA Treatment Records.

Evaluating all of the evidence with respect to the aforementioned criteria, the Board finds that the Veteran's symptoms meet the 10 percent rating criteria under DCs 8520, 8521, 8524, 8525, and 8526.

Under DC 8520, the Veteran is currently assigned 10 percent ratings for left and right lower extremity radiculopathy which presents as mild incomplete paralysis of the sciatic nerve. Higher, 20 percent ratings are not warranted unless the Veteran's symptoms present as moderate incomplete paralysis.

Under DC 8521, the Veteran's left and right lower extremity radiculopathy warrants 10 percent ratings for mild incomplete paralysis of the external popliteal nerve (common peroneal). Higher, 20 percent ratings are not warranted unless the Veteran's symptoms present as moderate incomplete paralysis.

Under DC 8524, the Veteran's left and right lower extremity radiculopathy warrants 10 percent ratings for mild incomplete paralysis of the internal popliteal nerve (tibial). Higher, 20 percent ratings are not warranted unless the Veteran's symptoms present as moderate incomplete paralysis.

Under DC 8525, the Veteran's left and right lower extremity radiculopathy warrants 10 percent ratings for mild incomplete paralysis of the posterior tibial nerve. Higher, 20 percent ratings are not warranted unless the Veteran's symptoms present as severe incomplete paralysis.

Under DC 8526, the Veteran is currently assigned 10 percent ratings for left and right lower extremity radiculopathy which presents as mild incomplete paralysis of the anterior crural nerve (femoral). Higher, 20 percent ratings are not warranted unless the Veteran's symptoms present as moderate incomplete paralysis.

The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, DeLuca, and Mitchell criteria, but a higher rating is not warranted for the Veteran's disability picture at any point during the period on appeal. See DeLuca, 8 Vet. App. at 206-07; Mitchell, 25 Vet. App. at 42-43. Although the Board is required to consider the effect of pain when making a rating determination, it is important to emphasize that the rating schedule does not provide a separate rating for pain. Thus, even considering the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment and 38 C.F.R. § 4.59 pertaining to painful motion, the evidence does not show that the Veteran's condition approximates a higher rating during this period. See 38 C.F.R. § 4.124a, DCs 8520, 8521, 8524, 8525, 8526.

The Board observes increased ratings claims include a one-year look back period; however, the record does not show worsening of the Veteran's bilateral lower extremity radiculopathy in the year preceding his current claim application. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating depends on when the increase in the disability can be ascertained). Since the Veteran's bilateral lower extremity radiculopathy did not worsen within the one year preceding his application for an increased rating, the Board finds that the appropriate date for the current ratings is the date of the claim, which is January 20, 2020. Accordingly, the Veteran is entitled to 10 percent ratings, but no higher, for left and right lower extremity radiculopathy under DCs 8520, 8521, 8524, 8525, and 8526 from January 20, 2020.

 

 

Paulette Vance Burton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Popa, Associate 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.