Decision A26039766

Citation Nr: A26039766
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 211005-189768
DATE: April 28, 2026

ORDER

A rating in excess of 20 percent for service-connected intervertebral disc syndrome, spondylosis, lumbar sacral spine, chronic myofascial low back pain, is denied.

A rating in excess of 20 percent for the service-connected left lower extremity radiculopathy, sciatic nerve, is denied.

FINDINGS OF FACT

1. The Veteran's intervertebral disc syndrome, spondylosis, lumbar sacral spine, chronic myofascial low back pain, is manifested by forward flexion of the thoracolumbar spine greater than 30 degrees, without evidence of favorable ankylosis of the entire thoracolumbar spine; or, incapacitating episodes of intervertebral disc syndrome, or associated objective neurologic abnormalities (beyond separately rated bilateral lower extremity radiculopathy).  

2. The Veteran's left lower extremity radiculopathy, sciatic nerve, is manifested by no more than moderate incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for service-connected intervertebral disc syndrome, spondylosis, lumbar sacral spine, chronic myofascial low back pain, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5243.  

2. The criteria for a rating in excess of 20 percent for the service-connected left lower extremity radiculopathy, sciatic nerve, have not been met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (Code) 8520.  

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant is a Veteran who served on active duty from March 1994 to March 1997 and from September 1998 to September 2001.  This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which is an agency of original jurisdiction.  

In the October 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  On April 4, 2025, the Veteran withdrew the hearing request.  Therefore, the Board may only consider the evidence of record at the time of the June 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or representative within 90 days following receipt of the withdrawal of the hearing request.  38 C.F.R. § 20.302(b).  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(b), 20.801.  Here, additional evidence was submitted within 90 days of the withdrawal, but it mainly pertained to treatment for the disabilities at issue after the review period (i.e., following the June 2021 AOJ decision on appeal) or to Social Security benefits many years prior to the Veteran's November 2018 claim for higher ratings (which are not relevant to evaluating the disabilities).  

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 claims, 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 Ratings

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  The percentage ratings 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
 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 claims, 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 Ratings

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  The percentage ratings 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 their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary of VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.  

1. Entitlement to a rating in excess of 20 percent for service-connected intervertebral disc syndrome, spondylosis, lumbar sacral spine, chronic myofascial low back pain

The Veteran's lumbosacral spine disability is currently rated as 20 percent disabling under 38 C.F.R. § 4.71a, Code 5243 (for intervertebral disc syndrome).  Disabilities under Code 5243 are evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.  (Effective February 7, 2021, Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses.")

The General Rating Formula for Diseases and Injuries of the Spine provides the following:  

A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  

A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  

A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine.  

38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  Id. at Note 1.  

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012).  For VA compensation purposes, unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision;
 objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  Id. at Note 1.  

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012).  For VA compensation purposes, unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching."  Id.  at Note 5.  Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis.  Id. at Note 5.  

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 3.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the 38 C.F.R. § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).  The final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."  Correia v. McDonald, 28 Vet. App. 158 (2016).  (The spine has no opposite joint.)  VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).  

The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides the following:

A 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  

A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  

A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  

A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  

38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.  An incapacitating episode is a
2 weeks during the past 12 months.  

A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  

A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  

A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  

38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.  An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  Id. at Note 1.

The Veteran filed a claim for a higher rating in November 2018.  Initially, based on evidence received during the development of the claim, the AOJ in a March 2019 rating decision proposed to reduce his lumbosacral spine disability rating from 20 to 10 percent.  Following additional development including another VA examination, the AOJ in the June 2021 rating decision on appeal determined that the reduction was not warranted after all and that a rating in excess of 20 percent was denied.  The Veteran appealed for a higher rating.  In a May 2025 statement in support of the claim, his attorney argued for a 40 percent rating for the service-connected lumbosacral spine disability.  After consideration of the lay and medical evidence, the Board finds that the evidence persuasively weighs against a rating in excess of 20 percent for the disability under both the General Rating Criteria and the criteria based on incapacitating episodes.

To satisfy the criteria for a 40 percent rating under the General Rating Criteria of Code 5243, there would have to be evidence showing forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  The range of motion findings, as described in examination reports and treatment records, do not approximate either of these levels of restriction.  

On January 2019 VA examination, the Veteran complained of persistent, progressive low back pain with his intervertebral disc syndrome.  He reported flare-ups that he described as pain lasting for hours to days with dysesthesias that was greater on the left side.  In describing functional loss, he stated he had pain and loss of range of motion.  On range of motion testing, forward flexion was [limited] to 80 degrees, extension was to 30 degrees, right and left lateral flexion was to 20 degrees (each side), and right and left lateral rotation was to 30 degrees (each side).  Pain causing functional loss was noted on the examination for forward flexion.  There was no additional loss of function or range of motion after three repetitions.  The examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repeated use over time or during a flare-up.  She was unable to say, without mere speculation, whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during a flare-up - and thus unable to express such functional limitation in degrees of additional loss of range of motion - because it was not witnessed throughout the examination.  The examiner did not note whether there was any spinal ankylosis.  She indicated that the Veteran had intervertebral disc syndrome but that he did not have any episodes of acute signs and symptoms due to it that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.  

On a March 2021 VA examination, the Veteran reported current symptoms of constant back cramps in the lower back and constant numbness, tingling, cramping, burning, stabbing [pain] radiating down both legs to the toes.  He received injections monthly and gabapentin daily.  He related that he was not able to sit or stand for longer than 10 minutes at a time, lift over 10 lbs., or lift his legs to put on shoes or get dressed.  He reported difficulty sleeping (he did not elaborate about this, but records in January 2019 indicate a concern for untreated sleep apnea and a psychiatric history with sleep disturbance symptomatology) and loss of range of motion, and he felt as if he was losing function of both legs (he stated he used a cane to catch himself because his legs gave out frequently).  He reported severe flare-ups that occurred every day, all day, which were precipitated by walking, sitting, and standing and which were alleviated by lying flat with his
.  He related that he was not able to sit or stand for longer than 10 minutes at a time, lift over 10 lbs., or lift his legs to put on shoes or get dressed.  He reported difficulty sleeping (he did not elaborate about this, but records in January 2019 indicate a concern for untreated sleep apnea and a psychiatric history with sleep disturbance symptomatology) and loss of range of motion, and he felt as if he was losing function of both legs (he stated he used a cane to catch himself because his legs gave out frequently).  He reported severe flare-ups that occurred every day, all day, which were precipitated by walking, sitting, and standing and which were alleviated by lying flat with his legs elevated.  In describing functional loss, he stated that his legs gave out frequently, that he could not lace up his shoes or put on socks, that he could hardly bend at all, and that he could not walk or stoop or do anything he used to be able to do.  

On range of motion testing, forward flexion was [limited] to 80 degrees, extension was to 20 degrees, right and left lateral flexion was to 30 degrees (each side), and right and left lateral rotation was to 20 degrees (each side).  Pain was exhibited on extension and lateral rotation.  There was no additional loss of range of motion after three repetitions.  The Veteran was not examined immediately after repeated use over time or during a flare-up, when pain and weakness reportedly limited his functional ability to a significant extent.  The examiner thus provided estimates for his range of motion in degrees during flare-ups (which were slightly worse than the estimates for repeated use over time), based on information procured from relevant sources including the Veteran's statements, as follows: forward flexion [limited] to 70 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees (each side), and right and left lateral rotation to 15 degrees (each side).  The examiner noted that there was no ankylosis of the spine.  She also indicated that the Veteran had intervertebral disc syndrome but that he did not have any episodes of acute signs and symptoms due to it that required bed rest prescribed by a physician and treatment by a physician in the past 12 months.    

Outpatient medical records show treatment for chronic pain in the lumbar spine and sacroiliac joint that has been gradually worsening since onset.  A February 2019 private record indicates the pain is aching and stabbing and radiating to the knees and thighs, with a severity of 7/10 and moderate.  The pain was the same all the time but aggravated by bending, lying down, position, sitting, standing, and twisting.  Associated symptoms include leg pain, numbness, and weakness.  He notably had tried many different treatment modalities including NSAIDs with only mild relief.  The Veteran was also seen for (service-connected) right hip arthritis, and received a steroid injection in the hip.  A May 2019 private record reflects similar complaints, and on examination there was "abnormal" range of motion on extension and on right and left rotation.  His symptoms persisted despite various treatments including NSAIDs, Tylenol, muscle relaxants, and opioid medication, so a lumbar epidural steroid injection was arranged.  A private August 2019 record shows he sought acupuncture treatment for pain in the hips and low back (with sciatica).  

Thus, as described above, the Veteran exhibits loss of range of motion due to his lumbosacral spine disability, but the overall extent of the reduction in motion did not approximate forward flexion of 30 degrees or less, even with repeated use over time and during flare-ups.  The examiners also found that he did not have ankylosis of the thoracolumbar spine, and they did not describe his limitation of motion in terms of being the functional equivalent of ankylosis of the lumbosacral spine.  In addition, the medical descriptions of the functional impact of the Veteran's disability do not demonstrate that his entire lumbosacral spine was essentially fixed in position (i.e., immobilized, consolidated, and with an inability to move in any directional plane), whether in a favorable or neutral position (zero degrees) or in an unfavorable angle.  Even when considering functional limitations during a flare-up, the clinical descriptions do not depict the Veteran's lumbosacral spine as stiff, rigid, or unbendable, as shown by the 2021 VA examiner's estimates of the additional range of motion loss on repeated use over time and during flare-ups.  In short, the most probative evidence on file does not provide descriptions of his lumbosacral spine disability in terms that can be construed as satisfying (approximating) the
 entire lumbosacral spine was essentially fixed in position (i.e., immobilized, consolidated, and with an inability to move in any directional plane), whether in a favorable or neutral position (zero degrees) or in an unfavorable angle.  Even when considering functional limitations during a flare-up, the clinical descriptions do not depict the Veteran's lumbosacral spine as stiff, rigid, or unbendable, as shown by the 2021 VA examiner's estimates of the additional range of motion loss on repeated use over time and during flare-ups.  In short, the most probative evidence on file does not provide descriptions of his lumbosacral spine disability in terms that can be construed as satisfying (approximating) the limitation of motion criteria for a 40 percent rating.  

In conjunction with the medical evidence, the Veteran's statements regarding his constant symptoms and functional loss due to pain that also radiated down the legs, which limited his activities such as prolonged sitting, standing, lifting, bending, stooping, and flare-ups have been considered.  However, even considering this lay evidence, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less, or result in favorable ankylosis of the entire thoracolumbar spine.  The lay evidence describing the Veteran's lumbosacral spine disability is not well-defined in terms of the approximate degree of loss of motion.  However, the clinical findings of the 2021 VA examiner, who recorded his descriptions of functional loss and included estimates of his limitation of motion during flare-ups and on repeated use over time, shows that his range of motion is more commensurate with criteria for a 20 percent rating.  Thus, in evaluating under the General Rating Formula, the medical evidence is shown to be more probative than the lay evidence, and the criteria for a 40 percent rating are not approximated.  

In reaching this decision, the Board has not considered the ameliorative effects of medication in assessing the Veteran's level of impairment caused by his lumbar spine disability.  See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (holding that when relevant rating criteria do not specifically contemplate medication use, the beneficial effects of that medication must be discounted); see also Ingram v. Collins, 38 Vet. App. 130 (2025) (reaffirming the central holding of Jones relative to assessing the severity of musculoskeletal disability in particular).  As the pertinent rating criteria do not contemplate medication use, the ameliorative effects of medication must be discounted.  Here, treatment records and examination reports reflect that during the period under review the Veteran was trying various medications for his symptoms of back pain that radiated to his lower extremities.  Evidently, such treatment provided minimal if any relief, as noted on treatment records.  On the 2021 examination, he claimed to have monthly injections but also to experience severe back flare-ups "all day everyday," which suggests that any medication was not efficacious.  Despite his claims, the examiner noted that the Veteran was not being examined during a flare-up.  There was no explicit showing that his examination took place while he was medicated, and the Veteran has not asserted that he received relief from his injections or any other medication that he might have been taking at that time.  As the record demonstrates no ameliorative effects of medication, there is none to discount.    

Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes.  The Veteran has not been shown to have prescribed bed rest for his spinal disability.  Both VA examiners addressed this question and stated that there were no incapacitating episodes related to the lumbosacral spine disability or bedrest prescribed by a physician in treatment records.  In short, there is no evidence on file, and the Veteran has not asserted, that he was prescribed bed rest by a physician for his lumbosacral spine disability for the duration specified for meeting the criteria for a higher rating (i.e., at least four weeks).  See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  In addition, as to neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any neurological abnormality associated with his lumbosacral spine disability, other than the bilateral lower extremity radiculopathy for which he is already separately rated.  (The evaluation for the left lower extremity radiculopathy will be discussed below.)  The VA examiners, for example, indicated that he did not have other neurologic abnormalities related
 for the duration specified for meeting the criteria for a higher rating (i.e., at least four weeks).  See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  In addition, as to neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any neurological abnormality associated with his lumbosacral spine disability, other than the bilateral lower extremity radiculopathy for which he is already separately rated.  (The evaluation for the left lower extremity radiculopathy will be discussed below.)  The VA examiners, for example, indicated that he did not have other neurologic abnormalities related to the lumbosacral spine disability to include bowel or bladder problems and/or pathologic reflexes.  

In summary, the evidence does not show that the criteria for a 40 percent rating under Code 5243 have been met or approximated.  Rather, the Veteran's lumbosacral spine disability is more akin to the disability picture contemplated for a 20 percent rating in which forward flexion is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, and muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Further, his lumbosacral spine is not shown to be ankylosed, even in a favorable position.  Thus, for the period on review, his lumbosacral spine disability is appropriately evaluated as 20 percent disabling under Code 5243.  

For the foregoing reasons, the evidence of record persuasively weighs against an initial rating in excess of 20 percent for the lumbosacral spine disability, and as such the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).  

2. Entitlement to a rating in excess of 20 percent for service-connected left lower extremity radiculopathy, sciatic nerve

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Code 8520.  Under this criteria, mild incomplete paralysis of the affected nerve is rated as 10 percent disabling.  Moderate incomplete paralysis is rated as 20 percent disabling.  Moderately severe incomplete paralysis is rated as 40 percent disabling.  Severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling.  Complete paralysis, where the foot dangles and drops, no active movement is possible of the muscles below the knee, flexion of the knee is weakened or (very rarely) lost, is rated as 80 percent disabling.  38 C.F.R. § 4.124a.  

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 is for the mild, or at most, the moderate degree.  The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves."  The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.  See Miller v. Shulkin, 28 Vet. App. 376 (2017).  

Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbances.  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.

The descriptive words "mild," "moderate," "moderately severe," and "severe," as used in the various diagnostic codes, are not defined in the Rating Schedule or regulations.  Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018) ("Diagnostic Code 8520 does not define 'mild
 neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbances.  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.

The descriptive words "mild," "moderate," "moderately severe," and "severe," as used in the various diagnostic codes, are not defined in the Rating Schedule or regulations.  Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018) ("Diagnostic Code 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, 2023 U.S. App. Vet. Claims LEXIS 98, at *5 (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 Code 8515).  Regarding Code 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, at *6 (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, 264 (2018).  Relevant to this case are M21-1 provisions regarding evaluations of paralysis of the peripheral nerves.  The M21-1 describes mild incomplete paralysis in general as a disability "limited to sensory deficits that are lower graded, less persistent, or affecting a smaller area" and indicates that a "very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis."  Part V, subpt. iii, ch. 12, sec. A.2.c.  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.  Examples given in the M21-1 of a moderate disability include "combinations of significant sensory changes and reflex or motor changes of a lower degree" and "motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate."  Id.  The M21-1 provides that a moderately severe evaluation is for assignment when there is "[m]otor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability," and indicates that atrophy may (but need not) be present.  Id.  The M21-1 describes that a "severe" evaluation is warranted for "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."  In addition, "[t]rophic changes may be seen in severe longstanding neuropathy."  Id.  "Trophic changes include, but are not limited to, skin changes (thinning, atrophy, fissuring, ulceration, scarring, absence of hair) as well as nail changes (clubbing, deformities)."  See, e.g., 38 C.F.R. § 4.104, Diagnostic Code 7115, Note 2.  

Additionally, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided with a maximum equal to severe incomplete paralysis
 very high level of limitation or disability."  In addition, "[t]rophic changes may be seen in severe longstanding neuropathy."  Id.  "Trophic changes include, but are not limited to, skin changes (thinning, atrophy, fissuring, ulceration, scarring, absence of hair) as well as nail changes (clubbing, deformities)."  See, e.g., 38 C.F.R. § 4.104, Diagnostic Code 7115, Note 2.  

Additionally, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided with a maximum equal to severe incomplete paralysis of the nerve.  38 C.F.R. § 4.123.  Neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis of the nerve.  38 C.F.R. § 4.124.  For the sciatic nerve, neuritis is contemplated under Code 8620, and neuralgia is contemplated under Code 8720.    

Given the relevance of these provisions to rating disabilities of the peripheral nerves, the Court in LeMon concluded that "the Board's failure to mention the M21-1's relevant guidance in this area constitutes clear error."  LeMon, at 7-8.  The Board has therefore reviewed the M21-1 definitions as applicable in this case.  

After applying the foregoing rating criteria to the facts in this case, the totality of the evidence shows that the Veteran's left lower extremity radiculopathy, which involves impairment solely of the sciatica nerve, does not warrant a rating higher than 20 percent.  In that regard, when assessing the degree of impairment relative to any motor functions, muscle atrophy, trophic changes, sensory disturbance, reflexes, pain, and paralysis, his disability more nearly approximates moderate, rather than moderately severe, incomplete paralysis under Code 8520 for the period considered in this appeal.  

For the period on appeal, the pertinent evidence includes VA and private outpatient treatment records and reports of VA examination in January 2019 and March 2021.  

Based on the foregoing evidence, the Veteran's left lower extremity radiculopathy of the sciatic nerve is shown to be manifested by pain, paresthesias and/or dysesthesias, numbness, decreased muscle strength, and impaired reflexes - all to varying degrees but none described as more than moderate.  Muscle atrophy and trophic changes were not present.  For example, in relation to the left lower extremity sciatic nerve injury, the Veteran on the January 2019 VA examination had mild, intermittent pain; mild paresthesias and/or dysesthesias; no numbness; normal (5/5) strength; normal (2+) reflexes; normal sensation in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes; and mild incomplete paralysis.  On his March 2021 VA examination, he had moderate, intermittent pain; moderate paresthesias and/or dysesthesias; moderate numbness; normal (5/5) strength; normal (2+) reflexes; normal sensation in the thigh/knee and lower leg/ankle and decreased (but not absent) sensation in the upper anterior thigh and foot/toes; and moderate (but not moderately severe or severe) incomplete paralysis.  VA and private treatment records reflect the same or similar symptoms as shown on the VA examinations.  For example, in December 2018, VA records show numbness in the leg/foot as well as decreased deep tendon reflexes, with the Veteran demonstrating his ability to walk on his tiptoes and heels.  Private records in February 2019 note the presence of leg pain, numbness, and weakness (without tingling) associated with his low back disability.  Additional private records in May 2019 show reports of pain in the left thigh, knee and foot, as well as symptoms of numbness, tingling, and weakness.  His muscle strength was 4/5 (active movement against some resistance) in the quadriceps and posterior tibial, and it was 5/5 (normal) in the hamstrings and anterior tibial.  

Relative to functional impact of the left lower extremity radiculopathy, the January 2019 examiner referenced the functional assessment as documented in a hip examination.  Notably, in that report she considered the impact (restrictions) of all service-connected disabilities, including the lumbosacral spine, both hips, and bilateral lower extremity radiculopathy, in the aggregate
 of pain in the left thigh, knee and foot, as well as symptoms of numbness, tingling, and weakness.  His muscle strength was 4/5 (active movement against some resistance) in the quadriceps and posterior tibial, and it was 5/5 (normal) in the hamstrings and anterior tibial.  

Relative to functional impact of the left lower extremity radiculopathy, the January 2019 examiner referenced the functional assessment as documented in a hip examination.  Notably, in that report she considered the impact (restrictions) of all service-connected disabilities, including the lumbosacral spine, both hips, and bilateral lower extremity radiculopathy, in the aggregate: sitting (45 minutes), standing (45 minutes), driving/riding (2 hours), working overhead (was able, but could not lift), walking (1/2 mile), squatting/kneeling (was able), lifting/carrying/pushing/pulling (35 lbs.), stairs (was able), inclines/declines (he avoided), ladders (he avoided), foot controls (he avoided), and climbing (he avoided).  The March 2021 examiner asserted in her assessment that it was difficult for the Veteran to stand for long periods of time.  The Veteran's constant use of a cane, for back and lower extremity pain, was noted in the report.  The treatment records do not show evidence of greater functional loss or impairment than is reflected in the VA examinations.  

The totality of the evidence thus shows that the Veteran's left lower extremity radiculopathy is manifested by symptoms reflective of sensory involvement including pain, slight impairment of motor function (with diminished muscle strength noted only on treatment records), and some degree reflex dysfunction (noted only on treatment records), but that muscle atrophy and trophic changes were not apparent.  Also, both VA examiners determined that the level of impairment from the Veteran's left lower extremity radiculopathy was commensurate with no more than moderate incomplete paralysis.  As noted, the evidence shows that some radicular symptoms fluctuated and were not always present, but none were assessed to correspond with a level of impairment greater than moderate.  It is arriving at this conclusion, the ameliorative effects of any pain/other medications on his left lower extremity function have been discounted, in accordance with Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (holding that when relevant rating criteria do not specifically contemplate medication use, the beneficial effects of that medication must be discounted).  The 2021 VA examiner indicated that the Veteran was prescribed gabapentin for his nerve pain, but there is no evidence to indicate that his examination was held while he was medicated or that the Veteran was benefitting from medication relief at that time.  

As noted earlier, the use of terminology such as "mild," "moderate," "moderately severe," and "severe" by VA examiners or other medical providers, although an element of evidence to be considered by the Board, is not dispositive of an issue.  Nonetheless, the Board agrees with the examiner's retrospective assessment and finds that the Veteran's left lower extremity radiculopathy approximates moderate incomplete paralysis regarding the sciatic nerve involvement.  The evidence shows that his sciatica involves a "combination[] of sensory changes and reflex or motor changes of a lower degree" (i.e., moderate), based on diminished (4/5) muscle strength and decreased deep tendon reflexes on some occasions but normal (5/5) strength and normal reflexes (2+) on VA examinations.  He has sensory impairment that covers a large area in nerve distribution (from thigh to toes) but does not have motor impairment, weakness, or loss of reflexes that would be indicative of "a high level of limitation or disability" (i.e., moderately severe), per the M21-1 guidance on the issue.  Any deficits have been assessed as medically moderate, as opposed to moderately severe or severe, and atrophy is not present that would suggest a higher level of limitation.  The Veteran's disability picture is more compatible with the descriptions of mild or moderate, incomplete paralysis that are provided in the M21-1 guidance on the issue.  Accordingly, under Code 8520, a rating higher than the currently assigned 20 percent rating is not warranted.  

For the period at issue, the Board has considered all other potentially applicable diagnostic codes, but there is no evidence showing that the Veteran has left lower extremity neurological impairment associated with any peripheral nerves other than the sciatic nerve.  Therefore, a separate (or higher) rating under a code different than Code 8520 is not warranted.  In that regard, the Board has contemplated Codes 8620 and 8720, for
 higher level of limitation.  The Veteran's disability picture is more compatible with the descriptions of mild or moderate, incomplete paralysis that are provided in the M21-1 guidance on the issue.  Accordingly, under Code 8520, a rating higher than the currently assigned 20 percent rating is not warranted.  

For the period at issue, the Board has considered all other potentially applicable diagnostic codes, but there is no evidence showing that the Veteran has left lower extremity neurological impairment associated with any peripheral nerves other than the sciatic nerve.  Therefore, a separate (or higher) rating under a code different than Code 8520 is not warranted.  In that regard, the Board has contemplated Codes 8620 and 8720, for neuritis and neuralgia, respectively, in reference to the sciatic nerve.  The ratings provide for nearly the same ratings on the scales as previously discussed in regard to Code 8520, although neuritis has a maximum equal to severe incomplete paralysis and neuralgia has a maximum equal to moderate incomplete paralysis.  38 C.F.R §§ 4.123, 4.124; see also Banschbach v. McDonough, 37 Vet. App. 422 (2024).  Here, the assignment of a separate rating under both Code 8520 (for the level of paralysis) and either Code 8620 (for the level of neuritis) or Code 8720 (for the level of neuralgia) would constitute pyramiding, which is impermissible.  See 38 C.F.R. § 4.14 (evaluation of the same manifestation under different diagnoses is to be avoided).  In other words, in this case it is not possible to parse, or deconstruct, the Veteran's symptoms of neuropathy - his pain, sensory deficit, motor/reflex impairment - in his left lower extremity into distinct conditions whereby each may receive a separate rating under a different code.  

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In conclusion, the evidence of record persuasively weighs against the Veteran's claim for a rating higher than 20 percent for his left lower extremity radiculopathy, sciatic nerve, the period on appeal.  As such, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Breitbeil, Debbie

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.