Citation Nr: 25008992 Decision Date: 07/09/25 Archive Date: 07/09/25 DOCKET NO. 17-52 130 DATE: July 9, 2025 ORDER A 40 percent rating, but no higher, for right lower extremity sciatic nerve radiculopathy, is granted, subject to the laws and regulations governing the assignment of monetary benefits. A 40 percent rating, but no higher, for left lower extremity sciatic radiculopathy, is granted, subject to the laws and regulations governing the assignment of monetary benefits. REMANDED The claim for a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran's right lower extremity sciatic nerve radiculopathy manifested in moderately severe incomplete paralysis. 2. During the period on appeal, the Veteran's left lower extremity sciatic nerve radiculopathy manifested in moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for right lower extremity sciatic nerve radiculopathy have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?4.1, 4.2, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for a 40 percent rating for left lower extremity sciatic nerve radiculopathy have been met. 38?U.S.C. §§?1155, 5107; 38?C.F.R. §§?4.1, 4.2, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1968 to November 1972. By way of background, in April 2022, the Board denied TDIU, as well as increased ratings for bilateral lower extremity radiculopathy and PTSD. The Board notes that PTSD is not currently an issue before the Board. The Veteran appealed the April 2022 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2024 memorandum decision, the Court found that the Board was required to discuss any relevant provision contained in the M21-1 as it pertained to the definitions of mild, moderate, and severe, per the Court's holding in Overton v. Wilkie 30 Vet. App. 257, and that a remand was required for the Board to reconsider the Veteran's radiculopathy rating in light of the manual. Additionally, the Court found that the Board did not discuss potentially favorable evidence, in that the Veteran asserted in his December 2019 TDIU application that his monthly income was $750. The Court noted that although the Board discussed the TDIU application where he had reportedly earned $50,000 in the last 12 months, the Board did not determine whether his monthly income in December 2019 reflected that he had substantially gainful employment since ending full-time employment in March 2019. In July 2024, the Veteran filed a fully developed claim for increased ratings for bilateral lower extremity radiculopathy and PTSD. His ratings were continued in a December 2024 rating decision. In January 2025, the Board denied the Veteran's increased rating claim for PTSD and remanded his increased rating claims for bilateral lower extremity radiculopathy and TDIU. In its remand instructions, the Board instructed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a peripheral nerve examination, and to ask the Veteran to provide an updated VA Form 21-8940 to specify his employment, number of hours worked, and level of income for any and all jobs he had between March 1, 2019, and July 6, 2024. Two requests were made to obtain employment information from the Veteran: once in February 2025 and once in March 2025, however the Veteran has not responded to these requests for information or provided any additional information regarding his employment/earnings for the time period listed above. Additionally, a peripheral nerve examination was obtained according to the Board's January 2025 remand instructions, therefore the Board finds that there has been substantial compliance with its remand instructions. Increased Rating The Veteran's bilateral lower extremity radiculopathy is current rated at 20 percent for each lower extremity 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, 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. While the Board typically provides its own outline, the Court has specifically noted that in this case the Board must discuss the provisions laid out in M21-1 V.iii.A.2.c, which discusses criteria for "assigning level of incomplete paralysis, neuritis, or neuralgia." 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. "Moderate" corresponds 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. "Moderately severe" (only applicable for the sciatic nerve), is considered the maximum rating for sciatic nerve neuritis not characterized by the organic changes outlined in 38 C.F.R. §4.123 (loss of reflexes, muscle atrophy, sensory disturbances, and constant pain). It is expected that there be motor and/or reflex impairment at a grade reflecting a high level of limitation or disability. "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. The Veteran was afforded a VA examination in February 2015 for his back, and the VA examiner noted he had hypoactive reflexes in his knees, absent reflexes in his ankles, and normal sensations. The Veteran's radiculopathy of the sciatic nerve manifested in mild constant pain, severe intermittent pain, moderate paresthesia and/or dysesthesias and numbness. The Veteran did not use any assistive devices, and no other radicular symptoms were reported. The Veteran was afforded another VA examination for his back in January 2020. The VA examiner noted he had normal muscle strength and reflexes, no radiculopathy, and that he did not use any assistive devices. The Veteran was afforded another VA examination for his back in March 2021 and had normal muscle strength and decreased lower leg/foot ankle reflexes. The VA examiner noted the Veteran did not have radiculopathy and did not use any assistive devices. The Veteran was afforded another VA examination for his back in July 2024 and was diagnosed with bilateral lower extremity radiculopathy of the sciatic nerve. Muscle strength and reflexes were normal, and there was decreased sensation in his thigh/knee, lower leg/ankle, and feet/toes. The VA examiner noted there was moderate constant pain, severe paresthesias/dysesthesias and numbness. The Veteran was afforded a peripheral nerves VA examination in March 2025 and was diagnosed with bilateral lower extremity radiculopathy. He reported constant discomfort in his legs with numbness and tingling, and stated that due to his symptoms, he had to elevate his legs and change positions from sitting to standing. The Veteran's radiculopathy was found to cause bilateral moderate constant pain, moderate bilateral paresthesias and/or dysesthesias, and moderate numbness. Muscle strength testing was normal, and there was no atrophy. The Veteran had hypoactive reflexes in his knees and ankles, decreased sensations in his upper thigh and thigh/knee, and absent sensations in his lower leg/ankle and feet/toes. There were trophic changes, including loss of hair with smooth, shiny skin, and an antalgic/unsteady gait specifically due to his radiculopathy. The VA examiner noted there was moderate incomplete paralysis of the sciatic nerves, and the Veteran denied using any assistive devices. The Veteran's post-service treatment records show that he denied numbness/tingling in December 2015. In July 2024, the Veteran submitted a statement where he reported he had to change how he walked to compensate for pain, that he smells like icy hot, and has numbness, muscle spasms, and pins and needles feelings. He stated he could not sit for long periods of time, and could not travel for more than a few hours, or do simple basic tasks like housework. He stated he got no relief from stretching or hot/cold treatments and that he did not take any over the counter medication. Here, while the Veteran was found to consistently have moderate incomplete paralysis of the sciatic nerve, he was also found to have trophic changes, and an abnormal gait. This indicates that his condition is not wholly sensory in nature, and that therefore, a higher rating is warranted. At the 2025 VA examination, the Veteran was shown to have trophic changes (loss of hair with smooth, shiny skin), an antalgic/unsteady gait, decreased sensations in his upper thigh/knee and absent sensations in his lower leg/ankle and feet/toes. The VA examiner also noted he had bilateral moderate constant pain, moderate bilateral paresthesias and/or dysesthesias, moderate numbness, and hypoactive reflexes in his knees and ankles. As stated above, the M21-1 V.iii.A.2.c. defines "moderately severe" (for sciatic nerve impairment), as manifesting in motor and/or reflex impairment (weakness, diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability. "Severe" is assigned when motor and/or reflex impairment (example atrophy, weakness, or diminished hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases, and for the sciatic nerve, marked muscular atrophy is expected. This provision also states that neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve. In this case the Board finds that the combination of symptoms experienced by the Veteran most closely warrants a moderately severe rating under DC 8520. In reaching this conclusion, the Board notes that the rating criteria under DC 8520 specifically notes that severe incomplete paralysis of the sciatic nerve is only warranted when there is also marked muscular atrophy. In this case, the Veteran has never been shown to have atrophy, therefore, a severe rating under DC 8520 cannot be assigned. Therefore, the highest rating the Board may assign for the Veteran's sciatic nerve radiculopathy corresponds with the moderately severe rating criteria, and as such a 40 percent rating for bilateral lower extremity radiculopathy of the sciatic nerve is granted. The Board finds that maximum ratings DC 8520 is not warranted at this time, as the Veteran has never been shown to have complete paralysis of the sciatic. He has not been shown to have atrophy, or to have complete loss of functioning of his lower extremities. Therefore, 40 percent ratings under DC 8520 are granted. REASONS FOR REMAND The Veteran is also seeking a TDIU due to his service-connected conditions. As previously stated above, the Veteran was afforded two opportunities to provide employment information and earnings between 2019 and 2024. The Veteran did not respond to VA's inquiries. At the July 2024 VA examination for PTSD, the VA examiner concluded that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported that he had not been able to work since 2019 because his prior employer was killed in a car accident. He stated that he did contract work in accounting but would like to work more, that he had difficulty keeping jobs because he worked with idiots, and that he sometimes worked as a dog sitter. In his TDIU applications, the Veteran reported that he was self-employed, that he earned $100,000 in one year (1982) as a cost analyst, that he earned $50,000 in 2014 ($2,500 per month), that he earned $49,181 in 2018 as a bookkeeper, that he earned $90,000 in 2003 as a consultant, that he earned $4,250 per month as a bookkeeper from September 2013 to March 2019, and that he earned $750 per month in December 2019. He also reported that he earned $1,261 per month from June 2013 to July 2013 from the Social Security Administration (SSA). His records show that he is college educated, and has a degree in industrial management, a Master's Degree in business and divinity, and that he was employed as an engineer until 1983 when he was laid off. The Board notes that the Veteran's medical records from SSA have been requested, but that SSA reported no medical records exist. However, the AOJ has not attempted to retrieve the Veteran's earnings from SSA, nor attempted to obtain the Veteran's authorization to obtain these records. The Board finds that as the Veteran's prior earning history is unclear, and he has not responded to prior attempts to provide his own earning history, that an attempt to retrieve SSA earnings should be made. The Veteran is reminded that he is expected to provide the necessary information to help substantiate his claim or help VA in obtaining records pertinent to the claim. VA has a duty to assist the claimant in obtaining information, and the claimant has a duty on his part to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). VA's duty must be understood as a duty to assist the claimant in developing his claim, rather than a duty on the part of VA to develop the entire claim with the claimant performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). (Continued on next page) The matters are REMANDED for the following action: Request from the SSA official earning records from August 2014 to July 6, 2024. If authorization is necessary, request the Veteran to complete and submit the authorization. Associate the records with the claims file, to include any negative responses. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elizabeth A. Gadson, 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.