Citation Nr: A25039167 Decision Date: 04/29/25 Archive Date: 04/29/25 DOCKET NO. 240925-484738 DATE: April 29, 2025 ORDER An initial 20 percent disability, but no higher, for service-connected right lower extremity sciatic radiculopathy, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT For the entire period on appeal, the Veteran's service-connected right lower extremity sciatic radiculopathy results in no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSION OF LAW For the entire period on appeal, the criteria for a 20 percent rating, but no higher, for service-connected right lower extremity sciatic radiculopathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1988 to February 1998. This case comes before the Board of Veteran's Appeals (Board) on appeal from an October 2023 rating decision issued by a VA Regional Office (RO), which is an agency of original jurisdiction (AOJ). The October 2023 rating decision confirmed and continued the previously assigned 10 percent rating for service-connected right lower sciatic radiculopathy. In the September 2024 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 October 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 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, 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 RATING Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be considered from the point of view of the veteran working or seeking to work. 38 C.F.R. § 4.2. 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. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Regarding the increased rating claim on appeal, the Board has considered the relevant temporal period, including one year prior to his increased rating claim, as well as the appropriateness of any assigned staged ratings periods and whether any additional staged ratings periods are warranted. Neurological impairment affecting the sciatic nerve is evaluated under 38 C.F.R. § 4.124a Diagnostic Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia), using the criteria under Diagnostic Code 8520. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. 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 varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id. The regulations specifically provide that when rating peripheral nerve injuries and residuals related thereto, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, and / or sensory disturbances. 38 C.F.R. § 4.120. Consideration is also given to loss of reflexes, muscle atrophy, sensory disturbances, and pain. See 38 C.F.R. §§ 4.123, 4.124. Under Diagnostic Code 8520, for incomplete paralysis, a 10 percent disability rating is assigned for mild incomplete paralysis. A 20 percent disability rating is assigned for moderate incomplete paralysis. If the condition is considered "moderately severe," a 40 percent disability rating is provided, and a 60 percent rating is warranted for conditions considered "severe, with marked muscular atrophy." An 80 percent rating is warranted for complete paralysis of the sciatic nerve, manifested by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Descriptive words such as "mild" 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 of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Board acknowledges 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 Affs., 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 is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion. Id.; see also 38 U.S.C. § 7104(c). The regulations further clarify that the Board "is not bound by Department manuals, circulars, or similar administrative issues." 38 C.F.R. § 20.105. Nevertheless, the Court in Overton v. Wilkie held that the Board is required to discuss "any relevant provisions contained in the [M21] 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] provision as a factor to support its decision." Overton v. Wilkie, 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). Under Wilson, the Board finds that VA's M21-1 does contain guidance relevant to the adjudication of the issue currently on appeal. Specifically, Part V, Subpart iii, Chapter 12, Section A.2.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 upper and lower peripheral nerves. "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, or affecting a small area and / or a very minimal reflex or motor abnormality. "Moderate" is described as the "maximum evaluation reserved for the most significant cases of sensory-only impairment. Symptoms will likely be described and medically graded as significantly disabling." The M21-1 further elaborates other "sign / symptom combinations" that 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 "Moderately severe" evaluation level 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" 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. Entitlement to an initial disability rating in excess of 10 percent for service-connected right lower extremity sciatic radiculopathy The Veteran seeks an increased initial rating for his service-connected right lower extremity sciatic radiculopathy. The reviewable evidence in this case includes a December 2022 VA Back Conditions Disability Benefits Questionnaire (DBQ), a May 2023 Statement in Support of Claim, a May 2023 Independent VA Rating Evaluation Regarding Right Lower Sciatic Radiculopathy, September 2023 CAPRI records, and a September 2023 VA Peripheral Nerves Conditions DBQ. Under the Appeals Modernization Act (AMA), a determination on a claim by the AOJ becomes final unless the claimant continuously pursues the claim by filing a supplemental claim, a request for higher-level review, or an appeal to the Board within one year of the date the AOJ mails notice of the decision. 38 C.F.R. § 3.2500(c)(1). If a claimant continuously pursues an issue by filing one of these administrative review options within one year, the effective date will be the date of receipt of the initial claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.2500(h)(1). If a supplemental claim is received more than one year after the date on which the AOJ issued notice of a decision, the effective date will be the date of receipt of the supplemental claim, or the date entitlement arose, whichever was later. 38 C.F.R. §§ 3.400, 3.2500(h)(2). In this case, the Veteran's May 2022 Fully Developed Claim for service connection for a right lower extremity nerve condition, was granted in a January 2023 rating decision. In that rating decision, the RO characterized the disability as right lower sciatic radiculopathy, and assigned an initial 10 percent evaluation, effective from May 10, 2022. In May 2023, the Veteran filed a Supplemental Claim. In an October 2023 rating decision, the RO denied a rating in excess of 10 percent for the service-connected right lower sciatic radiculopathy. This appeal followed. See September 2024 VA Form 10182 Notice of Disagreement. In the September 2024 NOD and attached argument, the Veteran's representative asserted that the Veteran is seeking a 20 percent rating for right lower extremity radiculopathy from May 10, 2022, due to moderate incomplete paralysis of the sciatic nerve. Upon review of the evidence, throughout the entire period on appeal, a higher 20 percent rating, but no greater, is granted for the Veteran's right lower extremity radiculopathy of the sciatic nerve under Diagnostic Code 8520. 38 C.F.R. § 4.7. On VA back conditions examination in December 2022, the Veteran was diagnosed with right sciatic radiculopathy of the right lower extremity. The Veteran reported having three surgeries on his back, with the first surgery in 2017 and the final surgery in June 2022. At that time, he had extreme back pain and severe right sciatic pain. Examination showed mild paresthesias and/or dysesthesias in the right lower extremity. Muscle strength in both lower extremities was normal. There was no muscle atrophy and no trophic changes. Reflex examination was normal in both lower extremities. Sensory examination showed sensation to light touch was decreased in the right lower leg/ankle. See December 2022 VA Back Conditions DBQ. In a May 2023 statement and during a May 2023 independent evaluation of his right lower extremity radiculopathy, the Veteran reported that he continuously experienced shooting pain, numbness, and aching on the right side, from the low back to the thigh and flare-ups multiple times a day, which typically lasted a few hours. He claimed he tried to limit movements that caused his symptoms to become worse, such as bending forward, leaning back, twisting to the right, twisting to the left, bending to the right, and bending to the left. Pain from the condition made it difficult to do certain everyday activities such as prolonged sitting; prolonged standing; prolonged walking; lying still without regularly adjusting positions; taking long car rides; doing household chores; doing yard work; participating in sports, including running and jogging; and using stairs. He also alleged that he used the following medications to treat his nerve pain: oxycodone, diclofenac sodium, and acetaminophen, and that he also used a handheld massaging device, heat, and ice to treat the condition See May 2023 Statement in Support of Claim and May 2023 Independent VA Rating Evaluation Regarding Right Lower Sciatic Radiculopathy. August 2023 VA outpatient treatment records show the Veteran has been prescribed and treated with oxycodone, diclofenac sodium, and acetaminophen, as well as Percocet for low back pain and major sciatic pain. He reported that he was taking oxycodone 10 mg every 8 hours as needed for severe pain or about 30 mg/day, but his prescription with the non-VA pain clinic was changed to Percocet 5 mg/acetaminophen 325 mg every 6 hours as needed for pain, and that he continues to take diclofenac sodium 75 mg once daily as directed for pain and inflammation. See September 2023 CAPRI records. On peripheral nerves conditions examination in September 2023, the Veteran was diagnosed with right lower sciatic radiculopathy. The Veteran reported that he started having significant issues with right sciatica around 2014 or 2015, before his multiple back surgeries. It got significantly better for approximately three years, after the first surgery, but then returned. So, in July 2022, he had another surgery due to significant pain in the right hip and legs. The leg got better for a month or two, but then he had an infection in the vertebrae, which resulted in loose hardware and he had to have another fusion surgery in February 2023 and he is still on antibiotics for it. The Veteran claims that the effects of the infection and loose hardware caused right leg weakness and he still has a residual limp. Examination showed moderate constant pain, severe intermittent pain, and mild paresthesias and/or dysesthesias in the right lower extremity. Muscle strength was slightly reduced to 4/5 on right knee extension, but normal otherwise. There was no muscle atrophy and no trophic changes. Reflex examination was normal in both lower extremities, but sensory examination showed sensation to light touch was decreased in the right lower leg/ankle and the right foot/toes. The examiner opined that the Veteran had mild incomplete paralysis of the sciatic nerve in the right lower extremity and the left lower extremity was normal. See September 2023 VA Peripheral Nerves Conditions DBQ. Notwithstanding the September 2023 VA examiner's diagnosis, the Veteran was actually noted to have mild, moderate, and severe neurological symptoms in the right lower extremity on VA examination in September 2023. He has also reported severe right sciatic pain, significant pain in the right hip and legs, and continuous shooting pain, numbness, and aching on the right side, from the low back to the thigh. See September 2023 VA peripheral nerves DBQ, May 2023 Statement in Support of Claim, and May 2023 Independent VA Rating Evaluation Regarding Right Lower Sciatic Radiculopathy. Furthermore, as noted above, the Veteran regularly uses the following medications to treat his nerve pain: oxycodone, diclofenac sodium, acetaminophen, and Percocet. On this point, the VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). The rating criteria listed under Diagnostic Code 8520 do not contemplate the ameliorative effects of medication on the Veteran's right lower extremity sciatic radiculopathy nerve disability. Without the ameliorative effects of the oxycodone, diclofenac sodium, acetaminophen, and Percocet he regularly takes, it is reasonable to infer that the Veteran's overall right lower extremity sciatic radiculopathy would result in more than mild symptoms. As such, resolving all reasonable doubt in the Veteran's favor, the assignment of a 20 percent disability rating for the Veteran's right lower extremity radiculopathy is warranted for the entire period on appeal, under Diagnostic Code 8520. In making this determination, the Board has considered the competent and credible medical and lay evidence of record. In other words, under Diagnostic Code 8520, the medical and lay evidence of record establishes neurological manifestations consistent with "moderate" incomplete paralysis of the right lower extremity sciatic nerve. See 38 C.F.R. § 4.124a. That is, the Veteran's lay statements and the medical evidence of record throughout the entire appeal document continuous sensory impairment in the right lower extremity affecting the sciatic nerve, by way of pain and numbness. There was also occasional decreased strength and weakness, resulting in functional impairment with daily activities. This is consistent with a "moderate" level of impairment as a result of the right lower extremity sciatic radiculopathy. Accordingly, a 20 percent rating for the service-connected right lower extremity sciatic radiculopathy is warranted. However, the record does not support a finding of moderately severe incomplete paralysis of the sciatic nerve. First, the record shows that the Veteran takes narcotic pain medications, and this has been consistent throughout the appeal period. Accordingly, it is not possible to know how much worse the Veteran's right lower extremity sciatic radiculopathy symptoms would be when discounting the ameliorative effects of that medication, and an estimate in this regard is speculative. Moreover, the Veteran's attorney argued in a September 2024 legal brief, that the Veteran should receive a corrective rating of 20 percent due to symptoms of moderate incomplete paralysis of the sciatic nerve. For the reasons set forth above, the Board agrees with that assessment, and the record does not contain evidence warranting a higher rating. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.