PARALYSIS OF SCIATIC NERVE, MODERATE INCOMPLETE

PAUL SORISIO · 2025 · Case ID: A25018053

GRANTED

Summary

The veteran, who served from May 1978 to October 1987, appeals the denial of increased ratings for bilateral lower extremity radiculopathy and service connection for bilateral knee and foot disabilities secondary to his service-connected lumbar spine disability. The Board found the veteran's bilateral lower extremity radiculopathy, characterized by moderate pain, paresthesias, and numbness, warranted a 20 percent rating for each extremity, citing moderate incomplete paralysis of the sciatic nerve. The Board determined that a higher rating was not warranted as the symptoms were wholly sensory and lacked significant motor or trophic changes, with normal muscle strength and reflexes noted in VA examinations. For the secondary claims, the Board found the competent and probative evidence, particularly a private medical opinion, supported service connection. This opinion linked the veteran's bilateral knee and foot disabilities to his service-connected lumbar spine disability, citing obesity caused by reduced activity as an intermediate step. The private opinion was supported by medical literature and the veteran's own statements about weight gain and activity limitations. The Board resolved reasonable doubt in the veteran's favor, granting service connection for the bilateral knee and foot disabilities secondary to the lumbar spine disability. The Board found the private opinion persuasive due to its rationale, medical literature support, and correlation with the veteran's records.

Rationale

Moderate incomplete paralysis of sciatic nerve; Symptoms of moderate pain, paresthesias, and numbness; Affects daily activities like walking and sitting

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

8520

Docket No.

230719-363870

Full Decision Text

Citation Nr: A25018053
Decision Date: 02/27/25 Archive Date: 02/27/25

DOCKET NO. 230719-363870
DATE: February 27, 2025

ORDER

A rating of 20 percent but no higher for radiculopathy of the right lower extremity is granted.

A rating of 20 percent but no higher for radiculopathy of the left lower extremity is granted.

Service connection for a right knee disability to include as due to a lumbar spine disability is granted.

Service connection for a left knee disability to include as due to a lumbar spine disability is granted.

Service connection for a right foot disability to include as due to a lumbar spine disability is granted.

Service connection for a left foot disability to include as due to a lumbar spine disability is granted.

FINDINGS OF FACT

1. Throughout the appeal period, the Veteran's right lower extremity radiculopathy has been manifested by moderate incomplete paralysis of the sciatic nerve.

2. Throughout the appeal period, the Veteran's left lower extremity radiculopathy has been manifested by moderate incomplete paralysis of the sciatic nerve.

3. The competent and probative evidence tends to show that the Veteran's right and left knee disabilities are proximately due to his obesity caused by his service-connected lumbar spine disability.

4. The competent and probative evidence tends to show that the Veteran's right and left foot disabilities are proximately due to his obesity caused by his service-connected lumbar spine disability.

CONCLUSIONS OF LAW

1. The criteria for a rating of 20 percent, but no higher, for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520.

2. The criteria for a rating of 20 percent, but no higher, for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520.

3. The criteria for service connection for a right knee disability as secondary to the lumbar spine disability, with obesity as an intermediate step, are met. 38 U.S.C. § 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(a); VAOPGCPREC No. 1-2017 (Jan. 6, 2017).

4. The criteria for service connection for a left knee disability as secondary to the lumbar spine disability, with obesity as an intermediate step, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(a); VAOPGCPREC No. 1-2017 (Jan. 6, 2017).

5. The criteria for service connection for a right foot disability as secondary to the lumbar spine disability, with obesity as an intermediate step, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(a); VAOPGCPREC No. 1-2017 (Jan. 6, 2017).

6. The criteria for service connection for a left foot disability as secondary to the lumbar spine disability, with obesity as an intermediate step, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(a); VAOPGCPREC No. 1-2017 (Jan. 6, 2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1978 to October 1987.

This matter comes to the Board of Veteran's Appeals (Board) on appeal from a Higher-Level Review (HLR) February 13, 2023 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO).

In July 2023, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), referencing the February 2023 decision and electing the Board's Direct Review option. Based upon the selection of the Direct Review option, the Board may only consider the evidence of record as of February 8, 2022-the date of the rating decision which prompted the Veteran's selection of the HLR review lane. See 38 C.F.R. §§ 20.301, 3.2601(f). If the Veteran submitted evidence that was added to the record after February 8, 2022, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501.

Increased Ratings

1. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity

2. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity

The Veteran contends he is entitled to higher ratings for his bilateral lower extremity radiculopathy.

The Agency of Original Jurisdiction (AOJ) has assigned the Veteran's bilateral lower extremity radiculopathy a 10 percent rating for each extremity under Diagnostic Code 8520 for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a.

Diagnostic Code 8520 provides a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, a 40 percent rating for moderately severe incomplete paralysis, and a 60 percent rating for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is assigned where there is complete paralysis of the sciatic nerve, characterized as dangle and drop of the foot, with no active movement of the muscles below the knee possible, and weakened or (very rarely) lost flexion of knee. 38 C.F.R. § 4.124a.

The rating code provides that the term "incomplete paralysis," with this and other peripheral nerve injuries, 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. See Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations).

The words "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, 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 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6.

VA guidance provides that mild incomplete paralysis is generally characterized by a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. Mild incomplete paralysis could involve a very minimal reflex or motor abnormality. Moderate incomplete paralysis will likely be described by the Veteran and medically graded as significantly disabling and a larger area in the nerve distribution may be affected by sensory symptoms. Other signs or symptoms may be demonstrated by 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 incomplete paralysis for the sciatic nerve is manifested by motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability, and atrophy may be present. The guidance also indicates that for severe incomplete paralysis, in general, the Veteran would show motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflex
area in the nerve distribution may be affected by sensory symptoms. Other signs or symptoms may be demonstrated by 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 incomplete paralysis for the sciatic nerve is manifested by motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability, and atrophy may be present. The guidance also indicates that for severe incomplete paralysis, in general, the Veteran would show 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, marked muscular atrophy is expected.

An October 2019 VA Disability Benefits Questionnaire (DBQ) concerning the Veteran's peripheral nerves condition shows that he was diagnosed with bilateral lumbar radiculopathy. The Veteran reported experiencing bilateral pain going down into his lower extremities for the past 20 to 25 years. He reported undergoing a trial of epidural steroid injections without much help. He also reported he could not walk in a grocery store to complete shopping, get into a car, and would trip going up stairs. The VA examiner noted symptoms of intermittent pain, paresthesias, and numbness all of a moderate severity. Muscle strength testing for the lower extremities were noted as 5/5 with no muscle atrophy. Reflex exam, sensory exam, and trophic changes showed "no response provided." Antalgic right limp was noted. The VA examiner noted that the sciatic nerve was assessed with moderate incomplete paralysis.

A December 2021 statement submitted by the Veteran reported that his bilateral lower extremity radiculopathy was more severe than currently rated. He reported shooting pain, burning, numbness, tingling, aching, and pin-and-needles sensations. The Veteran reported that the pain from the condition made it difficult when conducting certain everyday activities such as sitting, standing, walking, long car rides, household chores, yard work, sports, running, jogging, and using stairs. He also reported that he felt one of his legs were smaller than the other. Use of medication to treat the condition was also reported.

A January 2022 VA DBQ concerning the peripheral nerves and lumbar spine disability shows that the Veteran's lower extremities had normal muscle strength with no muscle atrophy. Reflex examination was normal. Sensory examination showed a decrease in the left leg and foot only. Symptoms of radiculopathy were noted by the VA examiner for the right lower extremity were mild intermittent pain, mild paresthesias, and mild numbness. The left lower extremity was assessed with moderate intermittent pain, moderate paresthesias, and moderate numbness.

Based on review of the relevant lay and medical evidence, the Board finds that ratings of 20 percent each but no higher for the right and left lower extremity radiculopathy of the sciatic nerves are warranted. This is due the manifestations of moderate pain, paresthesias, and numbness. The Veteran is competent to describe symptoms of his radiculopathy as he has reported that the pain has affected his ability conduct activities of daily living to include grocery shopping and walking up stairs. Therefore, the Board finds that the level of impairment is more nearly approximated to moderate incomplete paralysis of the sciatic nerve and warrants a separate rating of 20 percent under Diagnostic Code 8520. Additionally, as noted above, the Board finds it significant that the Veteran had to undergo an epidural injection procedure due to the severity of the pain.

Regarding an even higher rating, the competent evidence of record, to include the above noted VA examination reports, reflect that the Veteran's symptoms have been wholly sensory in nature. As such, the Board finds that a higher rating is not warranted. The Board also finds that the most probative evidence of record tends to weigh against a finding that the disability is manifest by significant sensory changes, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis weighing against a rating in excess of 20 percent. In support of this finding, the Board finds probative the 2019 and 2022 VA examination findings showing muscle strength testing for the lower extremities as normal. Furthermore, upon examinations, the Veteran did not have muscle atrophy and his reflex examinations were normal. The Board also finds the VA examinations conducted in 2019 and 2022 contain findings to be probative as they show normal muscle strength and no atrophy. In sum, the Board finds that the competent and probative evidence weighs against a finding of moderately severe incomplete paralysis.

The Board
that the disability is manifest by significant sensory changes, trophic changes, loss of reflexes, muscle atrophy, or complete paralysis weighing against a rating in excess of 20 percent. In support of this finding, the Board finds probative the 2019 and 2022 VA examination findings showing muscle strength testing for the lower extremities as normal. Furthermore, upon examinations, the Veteran did not have muscle atrophy and his reflex examinations were normal. The Board also finds the VA examinations conducted in 2019 and 2022 contain findings to be probative as they show normal muscle strength and no atrophy. In sum, the Board finds that the competent and probative evidence weighs against a finding of moderately severe incomplete paralysis.

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.

In conclusion, the Board finds that the evidence is that the evidence of record is persuasively in favor of 20 percent ratings for the right and left lower extremity radiculopathy but no higher. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4 th 776 (Fed. Cir. 2021).

Service Connection

3. Entitlement to service connection for a right knee disability to include as due to a lumbar spine disability.

4. Entitlement to service connection for a left knee disability to include as due to a lumbar spine disability.

5. Entitlement to service connection for a right foot to include as due to a lumbar spine disability.

6. Entitlement to service connection for a left foot disability to include as due to a lumbar spine disability.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310. In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998).

VA's General Counsel (GC) issued a precedential opinion on how the issue of obesity is to be assessed. One of the primary holdings of the opinion is that obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. VAOPGCPREC No. 1-2017 (Jan. 6, 2017); see Marcelino v. Shulkin, 29 Vet. App. 155 (2018). The GC recognized further, however, that obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a).

As such, VA may service connect the current disability on a secondary basis under 38 C.F.R. § 3.310(a) to include aggravation of a non-service-connected disability. See Walsh v. Wilkie, 32 Vet. App. 300 (2020) (explaining service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability).

To determine whether obesity is an intermediate step between a service-connected disability and the development of a current disability that may be service connected on a secondary basis, the following criteria must all be satisfied: (1) the service-connected disability must have caused the Veteran to become obese; (2) the obesity, as a result of the service-connected disability must have been a substantial factor in causing the potential secondary disability; and (3) the potential secondary disability would not have occurred but for the obesity caused by the service-connected disability.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

A February 2022 VA foot examination report reflect multiple diagnosis related to the Veteran's bilateral feet, to include pes planus, hallux valgus, and degenerative arthritis. A February 2022 VA knee examination report reflects a diagnosis of degenerative arthritis.

The Veteran submitted a statement in support in January 2022 that indicated due to his service-connected lumbosacral strain and its related pain, he is less motivated and less active. As a result, the Veteran stated that he has gain weight. He stated that he limits activities, such as walking around a store and yard work.

A February 2022 VA medical opinion shows that after a review of the evidence of record, the VA examiner determined that it was less likely than not that the Veteran's bilateral foot and knee disabilities were caused by service-connected disabilities. The VA examiner noted that while the service-connected lumbar spine disability and psychiatric disability both could represent risk factors for weight gain, and obesity is multifactorial and can be prevented by dietary discretion and exercise (non-weightbearing exercise in the case of the lower back condition) which are not limited in the setting of the aforementioned conditions.

A December 2021 private examination report shows that after a review of the evidence of record, to include medical literature, the private examiner opined that it was at least as likely as not that the Veteran's bilateral knee and bilateral foot disability are secondary to and aggravated by the service-connected lumbar spine disability. The private examiner remarked that the Veteran's service-connected lumbar spine disability led to weight gain and obesity which in turn caused and/or aggravated the bilateral knee and bilateral foot disabilities. The private examiner noted that the Veteran currently weighed 310 pounds due to a 115-pound weight gain which was caused by decreased activities related to the service-connected lumbar spine disability. Also noted by the VA examiner was that medical literature also supported a nexus between body weight and weight gain with causing and aggravating the musculoskeletal system including the bilateral knee and bilateral foot disabilities.

After a review of the evidence, the Board finds that the Veteran's claim for the bilateral knee disability and bilateral foot disability secondary to his service-connected lumbar spine disability is warranted. Favorable to the Veteran, the December 2021 private opinion noted that the Veteran's weight gain was caused by his service-connected lumbar spine disability and the weight gain caused and/or aggravate the diagnosed bilateral knee disabilities and bilateral foot disabilities. The private opinion also cited to medical literature and related the articles to the Veteran's specific disability. The Board finds that the private opinion was supported by a rationale, medical literature, and information from the Veteran's medical records. Therefore, the private opinion is afforded probative and persuasive value.

The Board finds that reasonable doubt has been resolved in the Veteran's favorite on this material issue of nexus. 38 U.S.C. § 5107(b). Therefore, the Board finds that secondary service connection for the bilateral knee disability and bilateral foot disability is warranted. 38 C.F.R. § 3.310(a).
his service-connected lumbar spine disability and the weight gain caused and/or aggravate the diagnosed bilateral knee disabilities and bilateral foot disabilities. The private opinion also cited to medical literature and related the articles to the Veteran's specific disability. The Board finds that the private opinion was supported by a rationale, medical literature, and information from the Veteran's medical records. Therefore, the private opinion is afforded probative and persuasive value.

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Dworkin

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.

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