PARALYSIS OF SCIATIC NERVE

J.W. FRANCIS · 2022 · Case ID: A22011613

MIXED

Summary

The veteran, who served in the United States Marine Corps from October 1968 to October 1970, including service in Vietnam, appeals the denial of increased disability ratings for his left and right lower extremity radiculopathy with foot drop. The Board granted entitlement to an initial rating of 60 percent for the left lower extremity condition from October 30, 2008, to April 15, 2019, finding that the symptoms most closely approximated severe, incomplete paralysis. This rating compensates for significant pain, decreased muscle strength, numbness, and left foot drop, requiring the use of assistive devices. The Board found the private medical opinion, which suggested the disability was equivalent to amputation, to have limited probative value due to retained sensation and muscle strength in parts of the left lower extremity. The Board denied entitlement to higher ratings for the left lower extremity for the remainder of the appellate period, finding the evidence weighed against claims of complete paralysis or equivalence to amputation. For the right lower extremity, the Board denied increased ratings for all periods on appeal, concluding that the Veteran's symptoms, while including numbness and some weakness, did not more closely approximate moderately severe, incomplete paralysis of the sciatic nerve or warrant higher ratings than those already assigned. The Board found the evidence persuasively weighed against the claims for higher ratings for both lower extremities, and therefore, the benefit-of-the-doubt rule did not apply.

Rationale

Symptoms approximated severe, incomplete paralysis; Impairment of motor function, sensory disturbance, decreased reflexes; Use of assistive device contemplated by rating schedule

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

8520

Docket No.

211210-203995

Full Decision Text

Citation Nr: A22011613
Decision Date: 06/22/22 Archive Date: 06/22/22

DOCKET NO. 211210-203995
DATE: June 22, 2022

ORDER

Entitlement to an initial rating of 60 percent from October 30, 2008, to April 15, 2019, for left lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy with left foot drop is granted, subject to the laws and regulations governing the payment of monetary benefits.

Entitlement to an initial rating greater than 60 percent from April 15, 2019, to November 12, 2021, for left lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy with left foot drop is denied.

Entitlement to an initial rating greater than 20 percent from October 30, 2008, to January 28, 2013, for right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy is denied.

Entitlement to an initial rating greater than 30 percent from January 28, 2013, to October 29, 2021, for right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy is denied.

Entitlement to an initial rating greater than 40 percent from October 29, 2021, to November 12, 2021, for right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy is denied.

FINDINGS OF FACT

1. For the entire appellate time period, the Veteran's left lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy with left foot drop has been manifested by no more than severe, with marked muscular atrophy, incomplete paralysis.

2. From October 30, 2008, to January 28, 2013, the Veteran's right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy was manifested by no more than moderate incomplete paralysis.

3. From January 28, 2013, to October 29, 2021, the Veteran's right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy was manifested by no more than moderate incomplete paralysis.

4. From October 29, 2021, to November 12, 2021, the Veteran's right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy was manifested by no more than moderate severe incomplete paralysis.

CONCLUSIONS OF LAW

1. From October 30, 2008, to April 15, 2019, the criteria for a disability rating of 60 percent for left lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy with left foot drop have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520.

2. The criteria for a disability rating in excess of 60 percent for left lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy with left foot drop have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

3. From October 30, 2008, to January 28, 2013, the criteria for a disability rating in excess of 20 percent for right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

4. From January 28, 2013, to October 29,
1, 4.3, 4.124a, Diagnostic Code 8520.

4. From January 28, 2013, to October 29, 2021, the criteria for a disability rating in excess of 30 percent for right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

5. From October 29, 2021, November 12, 2021, the criteria for a disability rating in excess of 40 percent for right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty in the United States Marine Corps from October 1968 to October 1970 including service in the Republic of Vietnam. He was awarded the Combat Action Ribbon.

A rating decision was issued under the legacy system in June 2014 and the Veteran submitted a timely notice of disagreement. Following a May 2016 Statement of the Case (SOC), multiple Board remands, and other adjudications, the agency of original jurisdiction (AOJ) issued a November 2021 Supplemental Statement of the Case (SSOC). The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a November 2021 VA Form 10182, Decision Review Request: Board Appeal, identifying the November 2021 SSOC. Therefore, the November 2021 SSOC is the decision on appeal. In the November 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the November 2021 SSOC, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303.

Increased Rating

1. Entitlement to an initial rating greater than 40 percent from October 30, 2008, to April 15, 2019, for left lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy with left foot drop

2. Entitlement to an initial rating greater than 60 percent from April 15, 2019, to November 12, 2021, for left lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy with left foot drop

3. Entitlement to an initial rating greater than 20 percent from October 30, 2008, to January 28, 2013, for right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy

4. Entitlement to an initial rating greater than 30 percent from January 28, 2013, to October 29, 2021, for right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy

5. Entitlement to an initial rating greater than 40 percent from October 29, 2021, to November 12, 2021, for right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy

The Veteran contends that he is entitled to a higher rating for the right and left lower extremity radiculopathy because the current ratings
Entitlement to an initial rating greater than 30 percent from January 28, 2013, to October 29, 2021, for right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy

The Veteran contends that he is entitled to a higher rating for the right and left lower extremity radiculopathy because the current ratings assigned do not accurately reflect the severity of his disabilities.

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis 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, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R § 4.124a.

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

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).

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123

Neuralgia, cranial or peripheral, 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. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124.

In his October 30, 2008, claim, the Veteran reported pain radiating down his spine and that he had developed left drop foot.

In November 2008, the Veteran was seen for painless onset of left foot drop about 3 months previously. On evaluation, there was noted toe drop more than foot drop, as the Veteran had some ability to hold his foot back, but no ability to hold the toes. There was a loss of vibratory sense in the toes, but no numbness. Ankle and knee reflexes were normal and straight leg raising tests were negative. Later that month, the Veteran underwent a far lateral L5-S1 discectomy for L5 nerve root decompression for the left side pain and foot drop.

In December 2008, the Veteran was ambulating with a
that he had developed left drop foot.

In December 2008, the Veteran was ambulating with a cane and complained of pain in the left leg that was worse with activity. There also was some numbness in the left foot. The Veteran had a normal gait, with good balance. He walked with a cane and was wearing a brace on the left ankle for foot drop, but the foot drop was worse since recent back surgery.

In March 2009, the Veteran underwent a VA examination. The Veteran reported worsening left lower extremity pain since the November 2008 surgery and continued foot drop. He also had developed right foot pain. There were no flare-ups. The left foot was numb most of the time and his right foot was going numb and traveling up the right leg. There were paresthesias, dysesthesias, and other sensory abnormalities, including aching, burning, numbness, and muscle spasms in the left lower extremity. There was burning and aching in the left foot radiating into the leg. The radiculopathy caused severe effects to driving, chores, travel, bathing, grooming, toileting, and dressing and prevented exercise, sports, and recreation.

March 2009 EMG studies showed moderate generalized polyneuropathy and probable superimposed severe left L5 radiculopathy.

In July 2009, the Veteran sought treatment for leg weakness. The Veteran had left foot drop. The Veteran had numbness and pain in both legs, with new numbness in the right leg. He complained of new onset buckling in the right leg. The Veteran had an unsteady gait, with normal muscle tone. Lower extremity muscle strength varied from 4 out of 5 to 5 out of 5, except for no strength in the left anterior tibialis, 1 out of 5 strength in the left peroneus, and 2 out of 5 in the left gastrocnemius and posterior tibialis. Deep tendon reflexes were present bilaterally. There was decreased sensation in a glove stocking distribution bilaterally. Vibration sensation was normal bilaterally.

In May 2010, the Veteran reported worsening pain and unchanged weakness, but strength and reflexes had improved. Lower extremity muscle strength was 3 to 4 out of 5 except for the left anterior tibialis was 0 out of 5 and left peroneus was 1 out of 5. Muscle tone and appearance was normal.

In an August 2010 statement, the Veteran stated that the nerves in the legs and feet caused his knees to buckle. He had to use canes to walk.

In February 2011, the Veteran had substantial loss of sensation in the right foot and weakness in the bilateral ankles.

A January 28, 2013, VA peripheral nerves examination report is of record. The Veteran reported constant severe pain, numbness, and paresthesias and/or dysesthesias in the right and left lower extremities. Right and left knee strength was 4 out of 5, right ankle strength was 4 out of 5, and left ankle strength was 0 out of 5. There was muscle atrophy to the bilateral extensor digitorum brevis on the top of the feet. Right and left knee reflexes were absent, right ankle reflexes were absent, and left ankle reflexes were hypoactive. Sensation was absent in the right and left feet and right lower leg / ankle, as well as absent left lower leg / ankle sensation. There were trophic changes in that he had mild reddening of the distal left foot. The Veteran was unable to walk or stand without support due to the chronic inflammatory demyelinating polyneuropathy. The Veteran had complete paralysis of the left external popliteal nerve, musculocutaneous nerve, and anterior tibial nerve. The Veteran had incomplete paralysis of the left internal popliteal nerve and posterior tibial nerve. The Veteran's left foot was in a walking
reflexes were absent, and left ankle reflexes were hypoactive. Sensation was absent in the right and left feet and right lower leg / ankle, as well as absent left lower leg / ankle sensation. There were trophic changes in that he had mild reddening of the distal left foot. The Veteran was unable to walk or stand without support due to the chronic inflammatory demyelinating polyneuropathy. The Veteran had complete paralysis of the left external popliteal nerve, musculocutaneous nerve, and anterior tibial nerve. The Veteran had incomplete paralysis of the left internal popliteal nerve and posterior tibial nerve. The Veteran's left foot was in a walking boot (for an August 2012 fracture) and his right foot was in a hinged ankle brace (for left drop foot). The examiner indicated that the Veteran would not be equally well served by amputation. As to the functional impact on the Veteran's ability to work noted that the symptoms associated with the bilateral polyneuropathy, including reflexes and strength, appeared to have improved since treatment in 2009.

A February 2014 back examination report noted muscle atrophy in the left leg. There was constant severe pain in the left lower extremity. A complete neurological examination was not performed.

A contemporaneous February 2014 peripheral nerves examination report noted ongoing acute left lower extremity pain with foot drop. There was severe constant pain and paresthesias and/or dysesthesias in the left lower extremity. The Veteran had moderate left lower extremity symptoms. Left ankle dorsiflexion strength was 0 out of 5. There was muscle atrophy in the left leg. There were no trophic changes. The Veteran used crutches or a walker for ambulation. The Veteran had incomplete paralysis of the left sciatic nerve. The Veteran had severe, incomplete paralysis of the external popliteal nerve. The Veteran had associated scars that were not painful and/or unstable, or with a total area of all related scars greater than or equal to 39 square centimeters (6 square inches). The functional impact on working was that the Veteran could not sit, stand, or walk for more than 30 minutes without experiencing marked increase in lumbar pain.

In July 2016, the Veteran had normal lower extremity muscle strength.

In a July 2016 substantive appeal, the Veteran contended that he warranted at least a 60 percent rating for the left lower extremity neuropathy. He also asserted that a 30 percent rating was warranted from October 30, 2008, based on evidence of severe, incomplete paralysis of the common peroneal nerve. A March 2009 EMG showed moderate generalized polyneuropathy. A January 2013 VA examination report confirmed a reduction in muscle strength and absence of reflexes in the right lower extremity. Based on these factors, the Veteran argued a 30 percent rating for the right lower extremity was warranted. In addition, consideration of an extraschedular rating was warranted based on the Veteran's need to use a wheelchair.

The Veteran underwent a VA diabetic peripheral neuropathy examination on April 15, 2019. The examiner concluded that the Veteran did not have symptoms attributable to diabetic peripheral neuropathy because the symptoms began well before his diagnosis of diabetes mellitus. Right lower extremity muscle strength was 4 out of 5. Left knee extension was 3 out of 5, left knee flexion was 2 out of 5, and left plantar flexion and dorsiflexion both were 1 out of 5. Light touch / monofilament testing was decreased in the right and left ankle/lower leg and the right foot / toes and was absent in the left foot / toes. Deep tendon reflexes were hypoactive in the right knee and absent in the left knee and right and left ankle. There was muscle atrophy in the left calf, as it was decreased by 2 centimeters. There were no trophic changes.

A contemporaneous VA examination report involving peripheral nerves other than diabetic peripheral neuropathy. In addition to the information noted in the above report, the Veteran had constant, moderate pain in the right and left lower extremity. There was moderate right lower extremity paresthesias and/or dysesthesias and numbness and severe left lower extremity paresthesias and/or dysesthesias and numbness. The Veteran was wheelchair bound due to the peripheral neuropathy. The Veteran had moderate, incomplete paralysis of the right sciatic and external popliteal nerves; mild, incomplete paralysis of the right anterior tibial, internal popliteal, and posterior tibial nerves; and severe, incomplete paralysis of the left sciatic, external popliteal, musculocutaneous, internal popliteal, and posterior tibial nerves. The right and left lower extremities would not be equally well served by an amputation. The neuropathy would affect the Veteran's ability to work due to difficulty with ambulation and the requirement to use a wheelchair.

The Veteran underwent a final VA peripheral nerves examination on October 29, 2021. The Veteran had severe right and left lower extremity constant pain and numbness. Lower extremity muscle strength was 4 out of 5 bilaterally. There was no muscle atrophy. Right and left lower extremity reflexes were normal. Sensation was decreased in the right and left lower leg / ankle and was absent in the bilateral foot / toes. There were no trophic changes. The Veteran was wheelchair dependent due to spine, drop foot, knees, and neuropathy disabilities. There was moderate, incomplete paralysis of the right and left sciatic nerves. The Veteran had right and left severe, incomplete paralysis of the external popliteal, anterior tibial, and internal popliteal nerves. The examiner concluded that the Veteran was not employable.

In support of his claim, the Veteran submitted a March 2022 private medical opinion. The physician noted that from no later than October 2008 the Veteran's bilateral lower extremity function had diminished significantly to the point where he began to experience significant safety issues, including balance impairment. The Veteran had limited sensation and decreased ranges of motion. The limitations affected the Veteran's ability to propel himself forward and to walk in general. The Veteran had balance problems and was unable to easily climb a flight of stairs. He could not rise from a seated position without using his hands to push off. The Veteran was a fall risk. "Therefore, he has nominal functioning in his feet, such that he would be equally served by amputation with suitable prosthesis. This level of dysfunction has been present since at least October 2008." The Veteran subsequently stated, "As explained above, the Veteran has been unable to ambulate independently and has been dependent or absent reactions on sensory and reflexes in both legs; this is shown in all of the above-noted medical examinations. Of note, the November 2021 medical examiner states the Veteran's 'feet are [dead] weight,' which contradicts the examiner's ultimate conclusion that the Veteran's current function is not equivalent with amputation with prosthesis."

Left Lower Extremity

Based on the above, the Board finds that the disability is primarily manifested by impairment of motor functions, intermittent trophic changes, sensory disturbance, loss of reflexes, pain, and left calf muscle atrophy. The Board thus finds that the level of impairment is most analogous to severe incomplete paralysis. The Board finds that the Veteran's symptoms most closely approximate a finding of severe, incomplete paralysis for the entire appellate time period. As such, entitlement to an increased rating of 60 percent is warranted for the period from October 30, 2008, to April 15, 2019. During that time period, the Veteran had severe pain, significantly decreased (or even absent) muscle strength in the left lower extremity, decreased reflexes, numbness, and decreased sensation. These difficulties, including left foot drop, made walking very difficult.

The Board finds that the Veteran's left lower extremity symptoms at no time on appeal more closely approximate that of complete paralysis of the sciatic nerve. The Veteran, as noted above, had left foot drop during the entire appellate time period. In addition, he had no muscle strength in one or more lower extremity muscle groups. That said, the 60 percent rating for psoriatic arthritis involving the bilateral ankles under Diagnostic Code 5009 (discussed in a separate contemporaneous decision) compensates the Veteran for impairment of the muscle groups involving movement of the ankle. Moreover, the most recent VA
reflexes, numbness, and decreased sensation. These difficulties, including left foot drop, made walking very difficult.

The Board finds that the Veteran's left lower extremity symptoms at no time on appeal more closely approximate that of complete paralysis of the sciatic nerve. The Veteran, as noted above, had left foot drop during the entire appellate time period. In addition, he had no muscle strength in one or more lower extremity muscle groups. That said, the 60 percent rating for psoriatic arthritis involving the bilateral ankles under Diagnostic Code 5009 (discussed in a separate contemporaneous decision) compensates the Veteran for impairment of the muscle groups involving movement of the ankle. Moreover, the most recent VA examination report (in October 2021) found that the Veteran had no left lower extremity muscle atrophy and muscle strength of 4 out of 5 in the left lower extremity, which demonstrates that the Veteran does not have complete paralysis of the sciatic nerve.

The Board has considered the March 2022 private opinion that the Veteran's left lower extremity radiculopathy was such that the disability was equivalent to amputation with prosthesis from at least October 2008. The Board finds this argument of limited probative value. Throughout the majority of the appellate time period the Veteran has had some degree or level of muscle strength, reflexes, and sensation in some joints / areas of the left lower extremity. As an example, during the most recent VA examination (in October 2021), the Veteran had 4 out of 5 muscle strength and normal reflexes in the left lower extremity. While the Veteran had absent sensation in the feet /toes, sensation was only diminished in the lower leg / ankle. The foregoing does not suggest that the Veteran would be served at least as well by an amputation, as he retains some level of sensation in areas of the left lower extremity, as well as reflexes and muscle strength.

The Board acknowledges that the Veteran uses an assistive device (currently a wheelchair and a cane or canes in the past) due to his left lower extremity radiculopathy. However, 38 C.F.R. § 4.120 "contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker." Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018).

The Board acknowledges the Veteran's assertion that his symptoms are not contemplated under the schedular criteria. However, given the broad nature of § 4.120, finding symptoms not contemplated by "impairment of motor, sensory or mental function" language presents quite a challenge. Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018).

Finally, the Board recognizes that the Veteran has some level of impairment of multiple other nerves of the left lower extremity. The current 60 percent rating under Diagnostic Code 8520 fully compensates the Veteran for the left lower extremity nerve problems. Even complete paralysis of another lower extremity nerve would not afford a higher rating than that currently assigned. See 38 C.F.R. § 4.124a, Diagnostic Codes 8521-8530. Separate ratings are not warranted because the currently assigned rating contemplates the limitation of the left lower extremity due to impairment of the nerves therein. The Veteran has also been awarded special monthly compensation for loss of use of one foot since October 30, 2008.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a compensable rating/rating in excess of 60 percent for left lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy with left foot drop. As the evidence of record persuasively weighs against a rating in excess of 60 percent, 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).

Right Lower Extremity

For the period prior to October 29, 2021, the Veteran's right lower extremity symptomatology did not more closely approximate moderately severe, incomplete paralysis of the sciatic nerve and, as such, a higher rating of 40 percent is not warranted for any period prior to October 29, 2021. The Veteran, at most, had slightly decreased muscle strength, with no muscle atrophy or decrease in muscle tone. The most significant issue appears to have been problems with sensation. EMG and physical examination testing during this period documented no greater than moderate impairment due to the right lower extremity peripheral neuropathy. As such, the Board concludes that ratings higher than 20 percent from October 30, 2008, to January 28, 2013, and higher than 30 percent from January 28, 2013, to October 29, 2021, under Diagnostic Code 8520 are not warranted.

As to the period from October 29, 2021, the VA examination on that date the Veteran had muscle strength that was 4 out of 5, with no muscle atrophy, normal reflexes, and decreased sensation in the lower leg / ankle and no sensation in the feet / toes. The examiner indicated that the Veteran had moderate, incomplete paralysis of the right sciatic nerve. These findings do not suggest that the Veteran had moderately severe, incomplete paralysis of the right sciatic nerve such that a 60 percent rating would be warranted under Diagnostic Code 8520.

The Board notes that the Veteran had some level of impairment of multiple other right lower extremity peripheral nerves during each of the above time periods, but concludes that a higher rating is not warranted for any period. As noted, the Veteran had nearly normal right lower extremity muscle strength without muscle atrophy or loss of muscle tone. The Veteran had numbness and some sensation loss due to the peripheral nerve problems, but these issues are fully contemplated in the currently assigned ratings. For the period from October 29, 2021, the Board recognizes that the Veteran had severe, incomplete paralysis of multiple nerves, but none of those nerve would provide for a higher rating than that currently assigned under Diagnostic Code 8520. As such, the Board concludes that higher or separate ratings are not warranted under the other Diagnostic Codes for impairment of the lower extremity peripheral nerves. See 38 C.F.R. § 4.124a, Diagnostic Codes 8521-8530.

The Board has considered the March 2022 private opinion that the Veteran's right lower extremity radiculopathy was such that the disability was equivalent to amputation with prosthesis from at least October 2008. The Board finds this argument of limited probative value. Throughout the majority of the appellate time period the Veteran has had some degree or level of muscle strength, reflexes, and sensation in some joints / areas of the right lower extremity. As an example, during the most recent VA examination (in October 2021), the Veteran had 4 out of 5 muscle strength and normal reflexes in the right lower extremity. While the Veteran had absent sensation in the feet /toes, sensation was only diminished in the lower leg / ankle. The foregoing does not suggest that the Veteran would be served at least as well by an amputation, as he retains some level of sensation in areas of the right lower extremity, as well as reflexes and muscle strength.

The Board acknowledges that the Veteran uses an assistive device (currently a wheelchair and a cane or canes in the past) due to his right lower extremity radiculopathy. However, 38 C.F.R. § 4.120 "contemplates any impairment of motor or sensory function that would require the use of an assistive device such as a cane or walker." Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018).

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a compensable rating/rating in excess of 20 percent from October 30, 2008, to January 28, 2013, higher than 30 percent from January 28, 2013, to October 29, 2021, or higher than 40 percent from October 29, 2021, to November 12, 2021, for right lower extremity sciatic nerve with external popliteal nerve and anterior tibial nerve and internal popliteal nerve radiculopathy. As the evidence of record persuasively weighs against higher ratings, 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).

J.W. FRANCIS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. J. Houbeck, 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.

Analyze in VA Law Explorer