Citation Nr: A25041206 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240715-455931 DATE: May 6, 2025 ORDER A rating of 40 percent, but no greater, for right lower extremity radiculopathy, sciatic nerve, is granted subject to the laws and regulations governing payment of monetary benefits. A rating of 40 percent, but no greater, for left lower extremity radiculopathy, sciatic nerve, is granted subject to the laws and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's right lower extremity radiculopathy, sciatic nerve, is manifested by no more than moderately severe incomplete paralysis. 2. The Veteran's left lower extremity radiculopathy, sciatic nerve is manifested by no more than moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher, for right lower extremity radiculopathy, sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC)8520. 2. The criteria for a 40 percent rating, but no higher, for left lower extremity radiculopathy, sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2011 to July 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2024 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the July 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 November 2023 agency of original jurisdiction (AOJ) decision that was subject to a higher-level review. 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. A rating of 40 percent, but no greater, for right and left lower extremity radiculopathy, sciatic nerve The Veteran contends that he is entitled to a higher rating for his bilateral lower extremity radiculopathy, sciatic nerve, which is currently assigned a 20 percent disability rating under DC 8520. DC 8520 contemplates impairment of the sciatic nerve. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. The highest possible rating, 80 percent, is warranted for complete paralysis of the sciatic nerve, meaning the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. In rating diseases of the peripheral nerves (including the sciatic and femoral nerves), the term "incomplete paralysis" 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 level 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. 38?C.F.R. §?4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders 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. See 38 C.F.R. §§ 4.123, 4.124. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. 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. Although the regulations do not specifically define the terms "mild," "moderate," and "severe," the regulations do provide useful guidance for comparative analysis. 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 of the nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial regeneration. As noted above, the terms in the Diagnostic Code are not defined. The Board will provide the required definition. The Court in Chavis v. McDonough, found that benchmarks established by VA must be discussed in addressing the subjective terms of these regulations. See Chavis v. McDonough, 34 Vet. App. 1 (2021) ("Without established benchmarks for those subjective terms, the Court is left without standards upon which to review the Board's decision." (Citing Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011)). In this case, "mild" corresponds to slight symptoms sufficient to support the diagnosis, generally characterized by less persistent sensory deficits, or those affecting a small area, and or very minimal reflex or motor abnormalities. The Board considers "moderate" to correspond to the maximum evaluation available for sensory-only impairment, characterized by symptoms described by the Veteran and considered significantly disabling medically, and/or involving a larger area in nerve distribution. Additionally, moderate can correspond to 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. Finally, "severe" is characterized by 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 cases. Although severe incomplete paralysis cases should show findings substantially less than those for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contains signs or symptoms that resemble some of those expected in cases of complete paralysis of the nerve. In June 2023, the Veteran filed a claim seeking a higher rating for his service connected bilateral lower extremity radiculopathy. He gave no indication of the neurologic symptomatology he was experiencing. Turning to the evidence of record, the Veteran was afforded a VA Back examination in July 2023. The VA examiner noted the Veteran's diagnoses of bilateral radiculopathy in the lower extremities. The Veteran's symptoms were found to be severe intermittent pain, paresthesias and/or dysesthesias, and numbness of both lower extremities. The Veteran's muscle strength was within normal limits. A sensory examination revealed intact bilateral sensation throughout the upper anterior thigh and thigh/knee and decreased sensation in the lower leg/ankle and foot/toes. Reflexes were hypoactive for the ankle bilaterally. No muscle atrophy or trophic changes were found. In summary, the record shows subjective reports of sensory symptoms, including intermittent pain, numbness, and paresthesias/dysesthesias that is severe. The record also shows symptoms that are more than wholly sensory, including hypoactive reflexes. After resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's overall disability picture more nearly approximates moderately severe incomplete paralysis of the sciatic nerves. Accordingly, ratings of 40 percent for bilateral lower extremity radiculopathy are granted. The Board finds that ratings in excess of 40 percent are not warranted at any time. There has been no muscle atrophy noted and no evidence of complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of muscles below the knee, or flexion of knee is weakened or lost. VA treatment records do not contain any evidence during the period on appeal that may indicate a higher rating is warranted for the Veteran's lower extremity radiculopathy. Accordingly, ratings in excess of 40 percent are not warranted. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Accordingly, the Board finds that severe incomplete paralysis is not substantiated. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jaigirdar, B. 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.