Citation Nr: A25028126
Decision Date: 03/26/25	Archive Date: 03/26/25

DOCKET NO. 230823-371239
DATE: March 26, 2025

ORDER

Entitlement to an initial rating in excess of 10 percent for radiculopathy, sciatic nerve, right lower extremity prior to April 22, 2023, is denied.

Entitlement to an initial rating in excess of 10 percent for radiculopathy, sciatic nerve, left lower extremity prior to April 22, 2023, is denied.

FINDINGS OF FACT

1. Prior to April 22, 2023, the Veteran's radiculopathy, sciatic nerve, right lower extremity resulted in at most mild paralysis of the sciatic nerve; moderate, moderately severe, severe with marked muscle atrophy, or complete paralysis of the sciatic nerve was not shown.

2. Prior to April 22, 2023, the Veteran's radiculopathy, sciatic nerve, left lower extremity resulted in at most mild paralysis of the sciatic nerve; moderate, moderately severe, severe with marked muscle atrophy, or complete paralysis of the sciatic nerve were not shown.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial rating in excess of 10 percent for radiculopathy, sciatic nerve, right lower extremity prior to April 22, 2023, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520.

2. The criteria for entitlement to an initial rating in excess of 10 percent for radiculopathy, sciatic nerve, left lower extremity prior to April 22, 2023, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.120, 4.123, 4.124, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 2000 to April 2011.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2023 Higher-Level Review (HLR) rating decision by the Department of Veterans Affairs (VA) Regional Office (RO); therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In July 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a June 2023 decision.  In August 2023, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior July 2023 decision.  

In the August 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the July 2023 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 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. 

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where the question for consideration is 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). 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).

VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  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.  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."  Hart v. Mansfield, 21 Vet. App. 505 (2007).

When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). 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.

A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through the senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007).

VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

1. Entitlement to an initial rating in excess of 10 percent for radiculopathy, sciatic nerve, right lower extremity prior to April 22, 2023, is denied.

2. Entitlement to an initial rating in excess of 10 percent for radiculopathy, sciatic nerve, left lower extremity prior to April 22, 2023, is denied.

By way of history, following an August 2021 Board remand, the AOJ granted service connection for the Veteran's left lower extremity radiculopathy with an evaluation and right lower extremity radiculopathy with an initial evaluation of 10 percent effective April 25, 2011, in a December 2021 rating decision. In December 2022, the Veteran's representative submitted a VA Form 20-0996, Request for Higher-Level Review, asserting that the Veteran is entitled to higher ratings than he was granted. In a February 2023 rating decision, the AOJ denied the Veteran's claims for higher disability ratings. Following a Board remand for the Veteran's spine condition, the AOJ granted an increase in the Veteran's disability ratings from 10 percent to 40 percent for left lower extremity radiculopathy and right lower extremity radiculopathy. See June 2023 rating decision. In July 2023, the Veteran filed a VA Form 20-0996, Request for Higher-Level Review (HLR) asserting entitlement to earlier effective dates for the grant of 40 percent disability ratings for left and right lower extremity radiculopathy. In an August 2023 HLR rating decision, the AOJ denied the Veteran's claims. 

In an August 2023 brief, the Veteran's representative characterized the issues on appeal as entitlement to an increased rating for radiculopathy, sciatic nerve, left lower extremity prior to April 22, 2023, and entitlement to an increased rating for radiculopathy, sciatic nerve, right lower extremity prior to April 22, 2023, which he asserts is warranted from April 25, 2011. The brief essentially argues in favor of increased initial ratings for left and right lower extremity radiculopathy. Considering the arguments advanced in the August 2023 brief, the Board has construed the instant appeal as entitlement to an initial rating in excess of 10 percent for radiculopathy, sciatic nerve, left lower extremity prior to April 22, 2023, and entitlement to an initial rating in excess of 10 percent for radiculopathy, sciatic nerve, right lower extremity prior to April 22, 2023. 

The Veteran seeks increased initial ratings for service-connected radiculopathy, sciatic nerve, left lower extremity and radiculopathy, sciatic nerve, right lower extremity each of which are rated 10 percent disabling from April 25, 2011, to April 22, 2023. From April 22, 2023, the Veteran is in receipt of a 40 percent rating for each and, thus, that period is not for consideration here. For the reasons specified below, the Board finds that initial ratings in excess of 10 percent are not warranted for radiculopathy, sciatic nerve left lower extremity and radiculopathy, sciatic nerve, right lower extremity for the period prior to April 22, 2023.

The Veteran's disabilities are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling. Moderate incomplete paralysis of the sciatic nerve is rated as 20 percent disabling. Moderately severe incomplete paralysis of the sciatic nerve is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscle atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve, with foot dangles and drops, no active movement possible of muscles below the knee, flexion of the 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 above rating criteria are not defined in the 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. However, regulations provide that ratings for peripheral nerve injuries are to be assigned based on 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. 38 C.F.R. §§ 4.123, 4.124.

According to Merriam-Webster's Online Dictionary, "mild" means not very severe. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

The term "incomplete paralysis," with this and other peripheral nerve injuries, 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 levels 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. See Note to 38 C.F.R. § 4.124a. Importantly, 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 Board acknowledges that the VA Adjudicative Procedures Manual M21-1 (hereinafter M21-1) contains provisions regarding rating peripheral nerve disabilities. The United States Court of Appeals for the Federal Circuit has held that the Board is not bound by the provisions of the M21-1 and the manual does not "carry the force of law." DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017). It is "an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation." Id. The M21-1 provisions do not go through the regular rulemaking procedures and are little more than evidence as to how the Veterans Benefits Administration (VBA) applies law and regulation in practice. It is not binding on the Board because it is not a regulation, instruction of the Secretary, or Office of General Counsel (OGC) opinion. 38 U.S.C. § 7104(c); see also DAV, 859 F.3d at 1077. VA regulation further clarifies that the Board "is not bound by Department manuals, circulars, or similar administrative issues." 38 C.F.R. § 20.105.

Nevertheless, the Court of Appeals for Veterans Claims (CAVC) in Overton v. Wilkie held that the Board is required to discuss "any relevant provisions contained in the [M21-1] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21-1] provision as a factor to support its decision." 30 Vet. App. 257, 264 (2018). More recently, in Wilson v. McDonough, the Court elaborated that, in the context of relevant guidance documents, the Board can "neither merely invoke nor ignore a relevant guidance provision to support its decision but must provide an independent rationale relating its decision to the relevant guidance document." 35 Vet. App. 75, 80 (2021).

Pursuant to Wilson, the Board finds that VA's M21-1 does contain guidance relevant to the adjudication of the issues currently on appeal. Specifically, Part V, Subpart iii, Chapter 12, Section A(c) of the M21-1 provides "general guidelines" for the terms "mild," "moderate," "moderately severe," and "severe" in the context of evaluating incomplete paralysis of the lower peripheral nerves.

Under the M21-1, "mild" is described as the lowest level of evaluation based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment. Generally, "mild" is limited to a disability limited to sensory deficits that are lower graded, less persistent, and affecting a small area and/or a very minimal reflex or motor abnormality.

"Moderate" in the M21-1 is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment. The M21-1 further elaborates that the following "sign/symptom combinations" may fall into the moderate category: 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 or hyperactive reflexes (with or without sensory impairment) graded as medically moderate.

The M21-1 provides that "moderately severe" is only applicable for involvement of the sciatic nerve and is described as motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability. Atrophy may be present with moderately severe peripheral neuropathy.

"Severe," in general, is expected to include 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 with severe longstanding neuropathy. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve.

Turning to the relevant evidence of record, in a February 2011 examination, the Veteran reported that he experienced weakness in his legs. The Veteran reported he had limitation in walking, stating he could only walk 1 mile on average. The Veteran reported that his condition in the past 12 months has not resulted in incapacitation. Regarding functional impairments, the Veteran reported that because of back pain he was unable to sit, stand, walk, or run for extended periods of time without pain. The examiner noted that the extremity examination did not reveal any evidence of visible varicose veins in the upper or lower extremities. Further, the examiner noted that there was no evidence of radiating pain on movement. Regarding the neurological examination of the lower extremities, the examiner noted that motor functions were within normal limits; sensory exam to pinprick/pain, touch, position, vibration, and temperature was intact on the left and right; the right lower extremity reflexes and left lower extremity reflexes were normal; and peripheral nerve involvement was not evident during the examination.

In an August 2013 medical note, the Veteran reported that after an MRI he was told that he had sciatica. He reported having numbness and a tingling sensation.

In a December 2013 neurosurgical consultation note, the physician noted that the Veteran reported that his back pain seemed to come and go, but his back pain paralyzed him on 2 occasions causing him to be unable to move his legs. The Veteran was seen in the emergency room and later discharged. The Veteran reported that the pain began 4 months ago and was centered in his right buttocks down his right leg. Further, the Veteran reported he had to use a cane to support his weight except for just brief periods of time. The physician reported no bowel and bladder function issues.

In a January 2019 private medical opinion, the clinician noted that the Veteran reported that he has occasional radicular symptoms in either lower extremity with shooting pain or numbness and tingling into the legs. The Veteran reported that his pain constantly travels down both legs and is relieved by rest and Oxycodone. The Veteran further reported that he is unable to stand or walk for more than 30 minutes before needing to sit down and rest due to back pain. 

In a February 2019 brief, the Veteran's representative noted that in a November 2010 medical evaluation board report the Veteran was diagnosed with intermittent radicular symptoms to the lower extremities and reported that the Veteran had occasional radicular symptoms in either lower extremity in the form of a shooting pain or some numbness and tingling into the legs. The Veteran's representative further noted that in a December 2014 exam, the Veteran was diagnosed with chronic lower back pain and lumbar radiculopathy. 

The Veteran was afforded a VA back examination in August 2021. The examiner noted a diagnosis of bilateral lower extremity (BLE) radiculopathy. On examination, the Veteran reported intermittent sharp shooting pains in mid/lower back and right/left flank that radiates down BLE with numbness and tingling in the BLE with prolonged standing. The examiner noted no constant pain in the right or left lower extremities. Intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness of both the right and left lower extremities were medically rated as mild. The examiner noted no other signs or symptoms of radiculopathy. On muscle strength testing, the Veteran had normal muscle strength, rated at a level five of five. The examiner noted that the Veteran did not have muscle atrophy. Reflex and sensory testing was normal. The straight leg raising test results were negative for pain that radiates below the knee. The Veteran reported his functional loss or functional impairment as being unable to tolerate prolonged sitting, standing, and walking due to back pain.

The Veteran was afforded a VA muscle examination in August 2021. The Veteran reported intermittent sharp shooting pains in mid/lower back and right/left flank that radiates down bilateral lower extremities (BLEs), numbness and tingling BLEs with prolonged standing. The examiner noted that the Veteran does not now have, nor has he ever had an injury to a muscle ground of the foot or leg. On examination of muscle strength testing, the Veteran's muscle strength was normal, rated at a five of five, in all areas. The Veteran does not have muscle atrophy. 

After careful review of the foregoing evidence, the Board finds that initial ratings of 10 percent, but not higher, are warranted for the Veteran's left and right lower extremity radiculopathy prior to April 22, 2023. In this regard, the evidence shows that the Veteran's bilateral lower extremity radiculopathy resulted in at most mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

In making this finding, the Board has placed significant weight on the February 2011 and August 2021 examinations, which contain comprehensive findings pertinent to the Veteran's disabilities. 

In this regard, the Veteran's February 2011 exam demonstrates mild signs and symptoms of radiculopathy noting that the Veteran reported weakness in his legs. Further, the exam report notes that the Veteran's motor functions were within normal limits; sensory exam to pinprick/pain, touch, position, vibration, and temperature was intact on the left and right; the right lower extremity reflexes and left lower extremity reflexes were normal; and peripheral nerve involvement was not evident during the examination. Also, the Veteran's August 2021 VA examination demonstrates mild signs and symptoms of radiculopathy noting that the Veteran reported numbness and tingling in his legs, and the Veteran's muscle strength, reflex, and sensory tests were all normal. These findings support a finding that the Veteran's disability more closely approximates "mild" impairment. Accordingly, the criteria for 10 percent ratings have been met.

The Board has considered whether an even higher, 20 percent rating is warranted at any time. As noted, a 20 rating requires moderate incomplete paralysis of the sciatic nerve. However, as there is no medical evidence showing that the Veteran has moderate incomplete paralysis of the sciatic nerves, the Board does not find that the criteria for 20 percent ratings have been met or more closely approximated. As such, an even higher rating is not warranted.

The Board has considered the evidence of record, including the Veteran's lay statements concerning his lower extremity radiculopathy disabilities. The Board finds that the most probative evidence of record shows that the Veteran's lower extremity radiculopathy disabilities were manifested by mild incomplete paralysis of the sciatic nerve prior to his April 22, 2023, VA examination. 

All other potentially applicable diagnostic codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). However, the Board finds that no additional higher or separate ratings under a different diagnostic code can be applied. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017).

Because the evidence of record persuasively weighs against entitlement to initial ratings, in excess of 10 percent for the Veteran's radiculopathy, sciatic nerve, left lower extremity and radiculopathy, sciatic nerve, right lower extremity, prior to April 22, 2023, the benefit-of-the-doubt rule is not for application, and the claims must be denied. 38 U.S.C. § 5107 (b); Lynch, 999 F.3d at 1391.

 

J. NICHOLS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Fuller, 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.