PARALYSIS OF SCIATIC NERVE

Summary

The veteran, who served from August 1985 to January 2008 with multiple periods of service, appeals the denial of an increased disability rating for his service-connected left lower extremity radiculopathy. The condition is currently rated at 20 percent disabling under Diagnostic Code 8520, which corresponds to moderate incomplete paralysis of the sciatic nerve. The veteran contends that his symptoms, including pain, numbness, altered gait, and difficulty with prolonged standing, more nearly approximate a moderately severe incomplete paralysis, which would warrant a higher rating. The Board reviewed lay testimony from the veteran and his wife, VA treatment records, private treatment records, and two VA examinations from May 2016 and July 2019. The Board found the July 2019 VA examination inadequate due to inconsistencies and a mild severity rating for the radiculopathy. A subsequent February 2020 VA examination found a moderate level of left lower extremity radiculopathy, with decreased sensation but normal strength and reflexes. The Board found this latter examination adequate and afforded it significant probative weight. Based on the objective findings of moderate severity, the Board concluded that the veteran's disability picture most closely approximates moderate incomplete paralysis, consistent with the current 20 percent rating, and does not warrant a higher rating. The Board also considered and rejected the possibility of a TDIU claim and found no basis for an extraschedular rating.

Rationale

Weight of evidence is against finding criteria for rating in excess of 20% met.; Objective testing revealed moderate level of severity, not approximating moderately severe paralysis.; Disability picture most closely approximates moderate incomplete paralysis, consistent with 20% rating.

Full Decision Text

Citation Nr: 20062485
Decision Date: 09/23/20	Archive Date: 09/23/20

DOCKET NO. 16-47 902
DATE: September 23, 2020

ORDER

Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy is denied.

FINDING OF FACT

The most probative evidence of record demonstrates the Veteran has had a level of impairment that is consistent with moderate incomplete paralysis of the sciatic nerve of the left lower extremity; this disability has not been manifested by symptoms that more nearly approximate moderately severe or severe incomplete paralysis.

CONCLUSION OF LAW

The criteria for entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1985 to August 1989, October 1990 to April 1990, May 1991 to December 1994, October 2003 to July 2004, and from September 2005 to January 2008.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Board last remanded the issue on appeal in October 2019.  A review of the record shows substantial compliance with the Board’s remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran is currently employed, and neither he nor his representative argue that his service-connected left lower extremity radiculopathy at issue renders him unemployable.  Additionally, the record does not otherwise reflect that the Veteran is unemployable on account of his service-connected left lower extremity radiculopathy.  Accordingly, the Board concludes that a claim for a TDIU has not been expressly raised or inferred.   

The Veteran provided testimony at a Travel Board hearing in June 2019 before the undersigned Veterans Law Judge.  A copy of the transcript of the hearing is of record.

Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy.

The Veteran asserts that a higher rating is warranted for his sciatic radiculopathy of the left lower extremity because his symptoms more nearly approximate a moderately severe incomplete paralysis of the sciatic nerve.  See June 2019 Hearing Transcript.  The Veteran’s left lower extremity radiculopathy is currently rated as 20 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520. 

Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  

If there is a question as to which evaluation to apply to the Veteran’s disability, 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.
, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  

If there is a question as to which evaluation to apply to the Veteran’s disability, 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 reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3. 

In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigned ratings referred to as staged ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

Neurological disability is evaluated on the basis of nerve paralysis, partial paralysis, neuritis or neuralgia in proportion to the impairment of motor or sensory function.  38 C.F.R. §§ 4.120-4.124a.  Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating.  See 38 C.F.R. § 4.124a, Code 8520.  Complete paralysis of the sciatic nerve warrants an 80 percent rating.  Id.  The Board notes that the words “mild,” “moderate,” and “moderately severe,” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.”  See 38 C.F.R. § 4.6.  

After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the criteria for a rating in excess of 20 percent is warranted under DC 8520.  In that regard, the Veteran testified that his symptoms include a loss of feeling in his toes and top of his left foot; numbness on the outside of his leg; and abnormal gait.  See June 2019 Hearing Transcript.  The Veteran denied any loss of strength or coordination in his left leg and has never fallen, but he has tripped and has challenges with uneven sidewalks.  Id.  The Veteran testified that his left lower extremity radiculopathy impacts his ability to sit, stand, walk, bike, and engage in occupational, social and family activities including exercise and house chores.  Id.  The Veteran’s wife attested that the Veteran’s symptoms include shooting pain down one or the other legs; feet are always cold; and impacts his ability to do activities, such as exercise.  See May 2019 Buddy Statement.  

VA treatment records demonstrate the Veteran’s left lower extremity radiculopathy manifested in symptoms including pain, numbness, and tingling of the left lower extremity.  See October 2016; November 2017 VA treatment records.  Private treatment records indicate the Veteran’s symptoms include pain reported as 5/10 by the Veteran, some weakness, change in gait, paresthesias, reduced sensation, and symptoms worse when walking and standing.  See July and August 2019 private treatment records.  

The Veteran was provided VA examinations in May 2016 and July 2019 for his service-connected back disability.  However, neither examination provided a complete physical examination of the Veteran’s radiculopathy of the left lower extremity as the examinations were focused on the Veteran’s service-connected back disability.  At the May 2016 VA examination, the Veteran reported bilateral pain radiating to the toes and tingling in the left foot and calf, and occasional weakness of the left lower extremity.  See May 2016 VA examination.  The VA examiner noted the Veteran had decreased sensation to light touch in his left lower extremity, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness.  Id.  The VA examiner noted the severity of the Veteran’s left lower extremity radiculopathy as mild. 
 provided a complete physical examination of the Veteran’s radiculopathy of the left lower extremity as the examinations were focused on the Veteran’s service-connected back disability.  At the May 2016 VA examination, the Veteran reported bilateral pain radiating to the toes and tingling in the left foot and calf, and occasional weakness of the left lower extremity.  See May 2016 VA examination.  The VA examiner noted the Veteran had decreased sensation to light touch in his left lower extremity, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness.  Id.  The VA examiner noted the severity of the Veteran’s left lower extremity radiculopathy as mild.  Id. 

At the July 2019 VA examination, the Veteran reported flare-ups with shooting pain going down the legs with the left leg worse than the right.  See July 2019 VA examination.  Upon examination, the July 2019 VA examiner noted the Veteran had severe intermittent pain and numbness in his left lower extremity, and moderate paresthesias and/or dysesthesias.  Id.  However, the VA examiner noted the severity of the Veteran’s radiculopathy as “not affected.”  Id.  The VA examiner’s findings are inconsistent with the clinical findings noted at the time and the Veteran’s lay statements at his June 2019 hearing before the Board.  As such, the Board previously determined the July 2019 VA examination to be inadequate to rate the Veteran’s condition and remanded for a new VA examination to determine the severity of the Veteran’s left lower radiculopathy.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Veteran was afforded a peripheral nerves condition VA examination in February 2020.  The Veteran reported symptoms of numbness down into the left foot that was worsening, curling of the toes, painful zingers daily, altered gait, inability to stand for more than 5 minutes at a time due to numbness and tingling, and has to stand once an hour.  See February 2020 VA examination.  Upon examination, the VA examiner noted the Veteran has moderate constant pain, paresthesias and/or dysesthesias, and numbness of the left lower extremity.  Id.  Strength was normal, with no muscle atrophy or complete paralysis, deep tendon reflexes were normal, and there was decreased sensation testing for light touch of the left foot and toes.  Id.  The VA examiner noted the Veteran’s gait is slightly off balance.  Id.  The VA examiner concluded that the Veteran has a moderate level of left lower extremity radiculopathy.  Id.  The February 2020 VA examiner indicated review of the Veteran’s VA e-folder and conducted an in-person examination.  Id.  As such, the Board finds the February 2020 VA examination adequate for decision making purposes and affords it significant probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  

In consideration of the foregoing, the Board finds that the disability picture associated with left lower extremity radiculopathy more closely approximates moderate incomplete paralysis under DC 8520, consistent with the currently assigned 20 percent disability rating.  Throughout the entire period on appeal, the Veteran’s left lower extremity radiculopathy demonstrated normal strength on objective testing despite the Veteran’s report of occasional weakness, normal deep tendon reflexes, no muscle atrophy or complete paralysis, and decreased sensation.  Objective testing revealed an overall moderate level of severity for the Veteran’s left lower extremity radiculopathy.  As such, the disability picture for the left lower extremity does not more nearly approximate moderately severe incomplete paralysis, and a 40 percent disability rating, the next higher level, is not warranted for any time during the appeal period.   

The Board finds that neither the Veteran nor the record has raised the question of extraschedular rating adjudication under 38 C.F.R. § 3.321 (b) for any period for the rating issue on appeal. See Doucette v. Shulkin, 28 Vet. App. 366, 369-10 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017) (recognizing “symptoms and functional effects contemplated and compensated by VA’s schedular rating criteria”).  Accordingly, the Board finds that the left lower extremity radiculopathy difficulties and findings in this case are factors contemplated in the regulations and schedular rating criteria
 C.F.R. § 3.321 (b) for any period for the rating issue on appeal. See Doucette v. Shulkin, 28 Vet. App. 366, 369-10 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017) (recognizing “symptoms and functional effects contemplated and compensated by VA’s schedular rating criteria”).  Accordingly, the Board finds that the left lower extremity radiculopathy difficulties and findings in this case are factors contemplated in the regulations and schedular rating criteria.

Absent any exceptional factors associated with the left lower extremity radiculopathy, the Board finds that an extraschedular claim has not been raised.  As an extraschedular claim has not even been raised, necessarily, the question of referral for an extraschedular rating adjudication pursuant to 38 C.F.R. § 3.321 (b)(1) is not reached. See Bagwell v. Brown, 9 Vet. App. 337 (1996) (holding that contentions of pain and suffering and financial expenses incurred due to a prolonged hospital stay did not trigger referral for extraschedular rating and would be a prohibited “review” of the Rating Schedule); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995) (finding harmless error in the Board’s failure to state whether it had considered extraschedular referral where “exceptional or unusual” circumstances to require the Board to discuss extraschedular referral were not raised); Dingess v. Nicholson, 19 Vet. App. 473, 498-99 (2006) (holding that the veteran had not raised an extraschedular claim before the Board, and the Board had not failed to sua sponte raise such claim for the veteran, where even a liberal reading of the evidence did not show either the veteran’s intent to seek extraschedular rating or that the evidence raised an extraschedular rating claim).  

In sum, the probative evidence of record demonstrates the Veteran’s disability picture most nearly approximates the criteria for a 20 percent rating under DC 8520.  Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the appeal must be denied.  38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  Therefore, a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy is not warranted.  

 

 

U. R. POWELL

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. P. Moore, Associate 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.