Citation Nr: 25009686 Decision Date: 07/25/25 Archive Date: 07/25/25 DOCKET NO. 14-04 311 DATE: July 25, 2025 ORDER Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is denied. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left lower extremity radiculopathy manifested with mild incomplete paralysis of the sciatic nerve with no evidence of greater impairment. 2. Throughout the appeal period, the Veteran's right lower extremity radiculopathy manifested with moderate incomplete paralysis of the sciatic nerve with no evidence of greater impairment. . CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8720. 2. The criteria for entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from December 1993 to February 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were before the Board in November 2017, at which time the Board denied, among other issues, entitlement to a compensable rating prior to April 15, 2015 for bilateral lower extremity radiculopathy. Thereafter, the Veteran appealed this decision to the Court of Appeals for Veterans Claims (the Court). In October 2018, a Joint Motion for Remand (JMR) was granted by the Court, vacating the November 2017 Board decision and remanding these issues back to the Board for additional development. This matter was recently remanded in March 2025 for additional development. A review of the record shows substantial compliance with the Board's prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating 1. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy. 2. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy. The Veteran contends that his bilateral lower extremity radiculopathy symptomology is worse than the ratings currently assigned. By way of history, the October 2010 rating decision on appeal granted service connection for bilateral lower extremity radiculopathy and assigned a noncompensable rating effective May 28, 2010, the date of the Veteran's claim for an increased rating for his low back disability. The Veteran timely appealed this determination to the Board. During the pendency of this appeal, a May 2015 rating decision increased the rating to 10 percent for the left lower extremity and 20 percent for the right lower extremity effective April 15, 2015. A November 2017 Board decision denied entitlement to a compensable rating prior to April 15, 2015 for bilateral lower extremity radiculopathy. As stated above, the Court granted a JMR in October 2018, vacating the Board decision and remanding it back to the Board for additional development. The Board remanded these issues for additional development in June 2019 and June 2023. A February 2024 rating decision granted an earlier effective date of May 28, 2010 for the assignment of the ratings currently assigned for the bilateral lower extremity radiculopathy. The Board again remanded these matters for additional development in March 2025. This appeal has now been returned to the Board to decide these claims. Relevant Law and Regulations Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 and consideration of the appropriateness of a "staged" rating is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The United States Court of Appeals for Veterans' Claims (the Court) since has extended this practice even to established ratings, not just initial ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence.? Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in approximate balance.? It is only when the weight of the evidence is against the claim that the claim must be denied.? 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021). The Veteran's bilateral lower extremity radiculopathy is rated under neuralgia of the sciatic nerve in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8720. Under DC 8720, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. A maximum 80 percent evaluation is assigned for complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. The term "incomplete paralysis," with peripheral nerve injuries, 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 the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, DCs 8510-8730. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018) ("DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms"). Although the Board has at times attempted to define these terms using dictionary definitions, those definitions are problematic because they "do little to explain the Board's understanding of these terms and do not 'disclos[e] that benchmark it employed to reach [its] conclusion.'" Casey v. McDonough, No. 21-7569, slip op. at 3 (Vet. App. Jan. 24, 2023) (mem dec) (Falvey, J.) (quoting Johnson v. Wilkie, 30 Vet. App. 245, 255 (2018) (discussing the Board's attempt to define the terms slight, mild, moderate, and severe in DC 8515). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). With regard to DC 8520, although 38 C.F.R. § 4.120, 4.123, and 4.124 are "helpful in framing the analysis, [they] are not alone sufficient to explain the Board's decision absent an articulated connection to specific evidence." Lemon v. McDonough, No. 21-3949, 2022 U.S. App. Vet. Claims LEXIS 1998, *7 (Dec. 16, 2022) (mem dec) (Toth, J.). As explained in Lemon, these regulations leave gaps in defining the relevant terms that are filled by VA's Adjudication Manual, M21-1. 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," Overton v. Wilkie, 30 Vet. App. 257 (2018). Clearly relevant to this case are M21-1 provisions regarding evaluations of paralysis of the sciatic nerve. The M21-1 describes mild incomplete paralysis as a disability "limited to sensory deficits that are lower graded, less persistent, or affecting a smaller area." Part V, sbpt. iii, ch. 12, sec. A.2.c. And moderate incomplete paralysis, per the M21-1, should be "reserved for the most significant cases of sensory-only impairment," where the sensory involvement covers "a larger area in the nerve distribution." Id. M21-1 examples of a moderate disability include "motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate." Id. And the M21-1 provides that a moderately severe evaluation (that is, a 40% rating) is available when there is "[m]otor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a higher level of limitation or disability." Id. Atrophy may, but need not, be present for a moderately severe rating. As concluded by the Court in Lemon, given the relevance of these provisions to rating disabilities of the peripheral nerves, "the Board's failure to mention the M21-1's relevant guidance in this area constitutes clear error." Lemon, at *7-*8. See also Bethea, 2 Vet. App. at 254. The Board will therefore mention, and apply, these definitions in the instant case. In relevant part, VA's Adjudication Manual, M21-1 V.iii.12.A.2.c. provides general guidance under the Assigning Level of Incomplete Paralysis, Neuritis or Neuralgia topic. It provides descriptions for each level of incomplete paralysis of the upper and lower peripheral nerves as detailed below. Degree of Incomplete Paralysis Description Mild: Mild is the lowest level of evaluation for each nerve; this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for service connected purposes. In general, look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. Moderate: Moderate is the maximum evaluation reserved for the most significant cases of sensory-only impairment (38 C.F.R. § 4.124a). Symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include 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. Moderate is also the maximum evaluation that can be assigned for: neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123, or neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve (38 C.F.R. § 4.124). Moderately Severe: The moderately severe evaluation level is only applicable for involvement of the sciatic nerve. This is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123. Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. Atrophy may be present. However, for marked muscular atrophy see the criteria for a severe evaluation under 38 C.F.R. § 4.124a, DC 8520. Severe: In general, expect 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. For the sciatic nerve (38 C.F.R. § 4.124a, DC 8520) marked muscular atrophy is expected. 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. 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 (38 C.F.R. § 4.123). VA's Adjudication Manual, M21-1 V.iii.12.A.2.c.. Factual History A review of the post service VA treatment records note numerous complaints and treatment for low back pain with associated lower extremity radicular pain. However, these reports do not include evidence of any additional rating criteria for the Veteran's bilateral lower extremity radiculopathy. As such, the Board will not discuss these reports any further. Gonzalez v. West, 218 F.3d at 1378, 1380-81 (2000). The Veteran underwent a VA back examination in September 2010. The examiner noted the Veteran walking with a very slow gait due to radicular pain to the right lower extremity. There were no findings regarding left lower extremity radiculopathy noted by the examiner. Additionally, the examiner noted sensory deficits of bilateral anterior thighs and inner knees. The Veteran underwent a second VA back examination in April 2015. The examiner found radicular pain associated with the service connected low back disability. Clinical examination revealed mild intermittent pain, paresthesias and/or dysesthesias, and numbness of the left lower extremity and moderate intermittent pain, paresthesias and/or dysesthesias, and numbness of the right lower extremity. The examiner noted the involvement of the sciatic nerve bilaterally. The examiner then found mild radiculopathy of the left lower extremity and moderate radiculopathy of the right lower extremity. Clinical examination revealed normal muscle strength, reflexes, and sensation to light touch. The Veteran reported constant use of a cane to walk due to his low back disability and bilateral lower extremity radiculopathy. The examiner found that the bilateral lower extremity radiculopathy affected the Veteran's ability to work in that he should probably have modifications of work duties in order to avoid heavy lifting, twisting, repetitive movements such as squatting, bending over, or climbing. The Veteran underwent a third VA back examination in November 2022. The examiner found radicular pain associated with the service connected low back disability. Clinical examination revealed moderate constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness of the left lower extremity and mild intermittent pain of the right lower extremity. The examiner noted the involvement of the sciatic nerve regarding the left lower extremity and the external cutaneous nerve of the right lower extremity. Clinical examination revealed normal muscle strength, reflexes, and sensation to light touch. The Veteran denied using an assistive device for walking. The examiner found that the bilateral lower extremity radiculopathy affected the Veteran's ability to work in that he would be unable to perform tasks that require prolonged standing, sitting, walking, and bending. VA opinions were issued in November 2022, February 2023, and March 2023. The examiners clarified the nerve roots involved in the bilateral lower extremity radiculopathy, finding that the sciatic nerve was involved bilaterally. The Veteran underwent a peripheral nerve examination in December 2024. He was diagnosed with bilateral lower extremity radiculopathy. The examiner noted the Veteran's report of bilateral constant severe pain in the lower extremities, severe paresthesias in the left lower extremity, but he denied experiencing intermittent pain, right lower extremity paresthesias, and bilateral numbness. Clinical examination revealed normal muscle strength and reflexes. The examiner noted the Veteran's stooped over gait due to his low back disability. The examiner also noted mild incomplete paralysis of the sciatic nerve bilaterally. She also noted mild incomplete paralysis of the right femoral nerve, external cutaneous nerve, and obturator nerve. The Veteran denied using an assistive device for walking. The examiner found that the bilateral lower extremity radiculopathy affected the Veteran's ability to work in that he cannot carry more than 10lbs or stand/sit/walk more than 20 to 30 minutes without increased pain. Analysis Based on the evidence of record, the Board finds that a 10 percent rating is warranted for the left lower extremity radiculopathy throughout the appeal period. The vast majority of the pertinent demonstrates that the Veteran experiences mild radiculopathy of the left lower extremity. The VA examiners' specific characterizations of the radiculopathy as "mild" were based on their professional training, the examination results, the Veteran's history and statements, and a review of the entire relevant record. The left lower extremity disability manifests mainly as pain, occasional numbness, and incomplete paralysis in the left lower extremity. However, a 20 percent rating is unwarranted, as the evidence does not demonstrate moderate incomplete paralysis of the sciatic nerve. The pertinent medical evidence demonstrates that the Veteran has had normal muscle strength, reflexes, and sensation to light touch, which weighs against a finding of moderate incomplete paralysis of the sciatic nerve. Indeed, the evidence demonstrates that the Veteran is able to walk and sit without the use of an assistive device, which weighs against finding that the Veteran has moderately severe incomplete paralysis of the sciatic nerve. As such, a higher rating for the left lower extremity is unwarranted Regarding the right lower extremity radiculopathy, the Board finds that the evidence demonstrates that the symptomology warrants, at most, a 20 percent rating throughout the appeal period. The vast majority of the pertinent medical evidence demonstrates that the Veteran experienced moderate radiculopathy of the right lower extremity. Additionally, the VA examination reports document that the Veteran experienced moderate incomplete paralysis of the sciatic nerve that resulted in moderate symptoms of radiculopathy in the right lower extremity. The VA examiners' specific characterizations of the radiculopathy as "moderate" were based on their professional training, the examination results, the Veteran's history and statements, and a review of the entire relevant record. The right lower extremity disability manifests mainly as numbness, pain, and incomplete paralysis in the right lower extremity. However, a rating of 40 percent is unwarranted, as the evidence does not demonstrate moderately severe incomplete paralysis of the sciatic nerve. The pertinent medical evidence does not demonstrate decreased sensation to touch, decreased muscle strength, or decreased reflexes. Indeed, the evidence demonstrates that the Veteran is able to walk and sit without the use of an assistive device, which weighs against finding that the Veteran has moderately severe incomplete paralysis of the sciatic nerve. As such, a higher rating for the right lower extremity is unwarranted. The Board has considered whether any other Diagnostic Codes would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Indeed, the Board notes that the Veteran is separately service connected for right lower extremity radiculopathy of the femoral nerve, cutaneous nerve, as well as the obturator nerve under DCs 8526, 8528, and 8529. However, these DCs would not warrant a higher rating. The Board notes the Veteran's representative has argued that the November 2022 VA examination and opinion are inadequate by stating that the examiner is incompetent to comment on neurological bilateral lower extremity radiculopathy disabilities because she has had no special training, education or experience in such matters. To the extent the Veteran's representative challenges the November 2022 VA examiner's competency based on the fact she is a nurse practitioner and noting the December 2024 VA examiner who provided the recent clinical findings of bilateral lower extremity radiculopathy is also a nurse practitioner, the Board acknowledges that, where the Veteran has challenged the competency of the examiner, VA must make factual findings regarding the examiner's qualifications and provide reasons and bases for concluding whether or not the examiner is competent. Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019) (en banc), cert. denied, 2020 U.S. LEXIS 1840 (March 23, 2020). The Board finds that the mere fact that the VA examiners are nurse practitioners does not automatically render the examiners not competent to conduct the examinations. Nurse practitioners have medical training and licensing requirements that they must meet and are prevalent in medical and clinical settings throughout the United States. Moreover, the Court has specifically upheld the adequacy of VA examinations performed by nurse practitioners. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). Accordingly, the Board finds that the VA contract examiners are competent to perform the examinations and render medical opinions in this matter. In adjudicating these claims, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends that his bilateral lower extremity radicular symptoms are worse than the ratings currently assigned. The Board also acknowledges that the Veteran is competent and credible to give evidence about what he observes or experiences. Layno v. Brown, 6 Vet. App. 465 (1994). That stated, these allegations of worsening symptomology are undercut by the other evidence of record, which does not favor a finding that the Veteran is entitled to a higher rating than the 10 percent currently assigned for his left lower extremity radiculopathy and the 20 percent for the right lower extremity radiculopathy during the appeal period based on the symptomology present. His current symptomology is encapsulated in the current rating assigned under the Rating Schedule, with no evidence of symptomology warranting extra-schedular consideration. The Board has considered the benefit-of-the-doubt rule; however, since the weight of the evidence is persuasively against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, Lynch v. McDonough, 21 F.4th 776 (2021). The appeal is therefore denied. Thomas L. English Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.