Citation Nr: 25005359 Decision Date: 04/21/25 Archive Date: 04/21/25 DOCKET NO. 17-40 130A DATE: April 21, 2025 ORDER Entitlement to an initial disability rating greater than 10 percent for right lower extremity radiculopathy is denied. FINDING OF FACT The Veteran's right lower extremity radiculopathy was manifested by mild incomplete paralysis; it was not manifested by moderate or moderately severe incomplete paralysis, severe incomplete paralysis with marked muscular atrophy, or complete paralysis. CONCLUSION OF LAW The criteria for an initial disability rating greater than 10 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2008 to April 2010. He initially appealed a May 2016 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to an initial disability rating greater than 10 percent for a lumbar spine condition. A Board of Veterans' Appeal (Board) hearing was held in July 2021. A transcript is of record. The appeal history is long. Most recently, in a February 2024 decision, the Board granted entitlement to an initial disability rating of 40 percent for a lumbar spine condition in addition to granting a separate, initial disability rating of 10 percent for right lower extremity radiculopathy. In February 2025, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the Board's February 2024 decision, in part, and remanded the issue of entitlement to an initial disability rating greater than 10 percent for right lower extremity radiculopathy. The Board notes the Veteran submitted a February 2025 letter noting the "legal arguments for consideration by VA when it readjudicates this remanded appeal." Although the attached memorandum includes an argument for an increased disability rating for the lumbar spine, the February 2025 JMPR did not disturb the February 2024 Board denial of a disability rating greater than 40 percent for the lumbar condition and the Court dismissed the issue. Thus, the only issue currently before the Board is entitlement to an initial disability rating greater than 10 percent for right lower extremity radiculopathy. In March 2025, the Veteran waived the 90-day opportunity to submit additional evidence and requested the Board adjudicate the appeal. The appeal is back before the Board. Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 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). 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 rating will be assigned. See 38 C.F.R. § 4.7. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service-connected right lower extremity radiculopathy is initially rated at 10 percent disabling under 38 C.F.R. § 4.124a, DC 8520. See February 2024 rating decision codesheet. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520. Under these criteria, mild incomplete paralysis of the sciatic nerve warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent rating, and severe incomplete paralysis with marked muscle atrophy warrants a 60 percent disability rating. See 38 C.F.R. § 4.124a, DC 8520. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Id. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than complete paralysis with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The words "mild," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. 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. For the purposes of this adjudication, "mild" means limited sensory deficits that are lower graded, less persistent, or affecting a small area, such as having only hypoactive reflexes solely the knee or ankle. "Moderate" means motor or reflex impairment such as weakness or diminished or hyperactive reflexes graded higher than mild. "Moderately severe" means a level of impairment that includes more -severe levels of muscle weakness than that found in moderate, with hyperactive or absent reflexes, and diminished or absent sensation. "Severe" means motor and reflex impairment at a grade reflecting a very high level of limitation. For example, peripheral neuritis that is characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated with a maximum equal to severe incomplete paralysis. See 38 C.F.R. § 4.123. The Board will use the characterization of severe incomplete paralysis for neuritis in 38 C.F.R. § 4.123 to define "severe" incomplete paralysis within DC 8520. Thus, for a rating in between mild and severe incomplete paralysis, a veteran would need to display at least some muscle, sensory, and/or reflex impairment, but would not need to display all the symptoms required of severe incomplete paralysis, including impaired reflexes, muscles, and sensation in addition to self-reported sensory symptoms of pain, numbness, and tingling. Importantly, for this Veteran's case, when the involvement is wholly sensory the rating is for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." There is 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). For the purposes of this adjudication, a veteran's case is wholly sensory when testing reflects no actual physical impairment but a veteran self-reports sensation such as pain, paresthesias, dysesthesias, and numbness. The Veteran testified that he has radicular pain that "radiates all the way down [his] back leg," and "only comes [on] after manual labor, chores, or any kind of things like that." See July 2021 Board Hr. Tr. at 3-4. He also noted that when he sits down for a while, he will get a sharp pain and then a tingling, numb sensation. Id. at 7. The Veteran also noted that when he has radicular pain it will feel like his muscles are weaker. Id. The Board finds the Veteran's testimony of his radicular symptoms and flareups to be competent and credible. These reports are further supported by the record. For example, August 2014 Twin Cities Orthopedics records confirm the Veteran had pain radiating to his right hip and some numbness on his right side after sitting in a car for an extended period. However, the Veteran noted he had "no radiating pain [or] numbness to tingling below [the] knee." See August 2014 Twin Cities Orthopedics records. At the June 2016 VA examination, the Veteran stated he "sometimes" has pain in his right buttock, but by the October 2021 VA examination, the Veteran reported constant pain in his right lower extremity. Thus, the record reflects the Veteran clearly experiences pain and sensory symptoms. Upon testing, the Veteran's right lower extremity had normal muscle strength, reflexes, and sensation in his entire right lower extremity. See December 2013, June 2016, and October 2021 VA examination reports; see also August 2014 Twin Cities Orthopedics records. Additionally, the Veteran tested negative to straight leg raising tests, indicating an absence of radiculopathy in right lower extremity. Id. Further, VA treatment records reflect minimal right lower extremity radicular symptoms. See, e.g., June 2014 VA treatment records (normal reflexes); December 2022 VA treatment records (normal knee reflexes). For example, the Veteran sought treatment for a back flareup after "prolonged sitting and fishing," and he reported right lower extremity pain initially that had reduced markedly. See October 2016 VA treatment records. Upon examination, the Veteran had normal reflexes, a negative straight leg raise test, and "no gross sensory or motor deficits." Id. Overall, the Board finds the Veteran's right lower extremity radiculopathy is considered wholly sensory as his symptoms are self-reported and physical testing of the Veteran's radicular symptoms were normal. Further, the Boards find that the record reflects solely mild symptoms as his strength, sensation, and reflexes were normal in his entire right lower extremity. The Board finds the three examination reports probative of the Veteran's symptoms during the appeal period as each examiner recorded the Veteran's reported symptoms and tested the Veteran's radicular symptoms. Further, the examinations are consistent with the record and Veteran's statements. The record does not reflect moderate incomplete paralysis as the Veteran has no weakness, diminished reflexes, or decreased sensation in any part of his right lower extremity, despite his credible claims that his muscles feel weaker and that he experiences "like that feeling when your foot falls asleep." See July 2021 Board Hr. Tr. at 7-8. The VA examination testing is probative as it reflects the Veteran's actual physical symptoms, not solely the Veteran's sensory reporting. Radicular symptoms that would reflect greater than mild symptoms would include any measurable decreased muscle strength, reflexes, or sensation upon testing. Overall, the Veteran's testing and his statements reflected no more than mild radicular symptoms. As such, the Veteran is not entitled to an initial disability rating greater than 10 percent for the right lower extremity radiculopathy as the record does not reflect symptoms greater than mild incomplete paralysis. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bona, J.F. 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.