SINUSITIS

Summary

The veteran, who served in the U.S. Army from July 1993 to July 2005, appeals the denial of service connection for sinusitis and seeks increased ratings for degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS), a left ankle sprain, and left lower extremity radiculopathy. The Board granted service connection for sinusitis, finding it presumed service-connected due to the veteran's service in Afghanistan after September 19, 2001, and a diagnosis of chronic sinusitis. For degenerative arthritis of the lumbar spine with IVDS, the Board granted an increased rating to 20 percent, finding that the veteran's reported flare-ups, which limited functional ability and reduced forward flexion to 45 degrees, met the criteria for this rating. The Board also granted an increased rating to 20 percent for the left ankle sprain, determining that the veteran's reported flare-ups with limited mobility and loss of motion, resulting in estimated plantar flexion to 9 degrees and dorsiflexion to 4 degrees, met the criteria for marked limitation of motion. Finally, the Board granted an increased rating to 20 percent for left lower extremity radiculopathy, finding that the moderate constant pain, paresthesias, dysesthesias, and numbness, along with a positive straight leg raising test, were most consistent with moderate incomplete paralysis of the sciatic nerve.

Rationale

Service connection for sinusitis granted based on Persian Gulf War service; Diagnosis of chronic sinusitis met; Service in Afghanistan from April 2004 to April 2005 satisfies qualifying period

Full Decision Text

Citation Nr: A25056580
Decision Date: 06/30/25	Archive Date: 06/30/25

DOCKET NO. 221021-288500
DATE: June 30, 2025

ORDER

Entitlement to service connection for sinusitis (particulate exposure) is granted. 

Entitlement to an increased rating of 20 percent for degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS) is granted.

Entitlement to an increased rating of 20 percent for a left ankle sprain is granted.

Entitlement to an increased rating of 20 percent for left lower extremity radiculopathy is granted. 

FINDINGS OF FACT

1. The Veteran served in Afghanistan after September 19, 2001, during the Persian Gulf War and is shown to have a diagnosis of sinusitis. 

2. The Veteran has been consistent in reporting flare-ups of which result in additional functional loss which is reasonably estimated to be manifested by forward flexion greater than 30 degrees, but not greater than 60 degrees. IVDS incapacitating episodes are not shown.

3. The Veteran's service-connected left ankle sprain is reasonably estimated to be manifested by marked limited motion. Ankylosis, malunion of os calcis or astragalus are not shown, and the Veteran has not undergone an astragalectomy.

4. The Veteran's left lower extremity radiculopathy is shown to be manifested by moderate incomplete paralysis of the sciatic nerve. 

CONCLUSIONS OF LAW

1. The criteria for service connection for sinusitis have been met. 38 U.S.C.         §§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.320. 

2. The criteria for an increased excess of 20 percent for degenerative arthritis of the lumbar spine with IVDS have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5243.

3. The criteria for an increased rating of 20 percent for a left ankle sprain have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Code 5271.

4. The criteria for an increased rating of 20 percent for left lower extremity radiculopathy has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from July 1993 to July 2005. 

In the October 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.

Therefore, the Board may only consider the evidence of record at the time of the September 2022 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. 

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 for increased ratings for degenerative arthritis of the spine and left ankle, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claim of service connection for sinusitis, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. §
 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 for increased ratings for degenerative arthritis of the spine and left ankle, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claim of service connection for sinusitis, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Service Connection

Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R.        § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson.  38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.            § 5107(b); 38 C.F.R. § 3.102.

1. Entitlement to service connection for sinusitis. 

Service connection for certain disabilities may be warranted for a Persian Gulf Veteran with a qualifying period of service based on exposure to fine particulate matter. Sinusitis is one of these disabilities. A qualifying period of service includes any period of active, military, naval, air, or space service in Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001, during the Persian Gulf War. 38 C.F.R. § 3.320. 

As to the first element of service connection, on October 2022 examination, the Veteran was diagnosed with chronic sinusitis. Thus, the first element of service connection is met.  

As to the second element of service connection, the Veteran's DD 214 notes service in Afghanistan from April 2004 to April 2005. This satisfies the qualifying period of service requirement for a claim based on exposure to fine particulate matter. Thus, the second element of service connection is met. 

Under these circumstances, the Board finds that the Veteran has met the requirements for service connection for sinusitis. He has the requisite service in Afghanistan after September 19, 2001, during the Persian Gulf War. Thus, sinusitis is presumed to be service connected. See 38 C.F.R. § 3.320.

Increased Ratings

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

Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58
2001, during the Persian Gulf War. Thus, sinusitis is presumed to be service connected. See 38 C.F.R. § 3.320.

Increased Ratings

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

Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

In a claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 

In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). With respect to the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These considerations thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the diagnostic codes applicable to disabilities of the musculoskeletal system do not subsume sections 4.40 and 4.45 of the regulations).

The Veteran filed an intent to file a claim on December 17, 2021. On June 2, 2022 (within one year of the intent to file a claim) the Veteran filed a VA Form 21-526EZ for an increase for (in relevant part) increases for the Veteran's low back disability, left leg radiculopathy, and left ankle disability. This appeal period therefore begins December 17, 2020. 

Revisions were made to certain regulations governing ratings for musculoskeletal disabilities, effective February 7, 2021, including a revision for Code 5243. As the Veteran's appeal was pending at the time of this revision, from that date, he is entitled to a rating under the old or the new criteria, whichever are more favorable.

2. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the lumbar spine with IVDS.

The Veteran's degenerative arthritis of the lumbar spine with IVDS was rated under Code 5243. Code 5243 is rated under either the General Rating Formula for Diseases and Injuries of the Spine (General Spine Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), depending on which Formula provides for a higher rating. 

Under the General Spine Formula a 10 percent rating is warranted when 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 when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or with favorable ankylosis of the entire thor
 abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or there is 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 when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) to the General Formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a.

Under the IVDS Formula a 10 percent rating was warranted with incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. A 20 percent rating was warranted with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating was warranted with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent rating was warranted with incapacitating episodes having a total duration of at least six weeks during the past twelve months.

Under revisions of February 7, 2021, Code 5243 is assigned 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. Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Spine Formula or under the IVDS Formula, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 

In June 2022 correspondence, the Veteran's attorney stated the Veteran had asserted that his low back condition had worsened since he was last examined. The Veteran's attorney stated that the Veteran reported experiencing flare ups of pain that limited functional ability. 

On June 2022 back conditions examination, the diagnoses were IVDS, degenerative arthritis of the lumbar spine, and left lower extremity radiculopathy. The Veteran did not report flare-ups of the thoracolumbar spine. Functional impairment shown was "lifting, heavy equipment, carrying weapons make pain worse, sometimes locks up." Range of motion was abnormal with forward flexion to 70 degrees, and extension, right and left lateral flexion, and right and left lateral rotation, each to 15 degrees. Pain on examination was shown on all range of motion tests. Localized tenderness, guarding, or muscle spasm, not resulting in abnormal gait or abnormal spinal contour was shown. Muscle strength testing was normal. Muscle atrophy was not shown. Sensory examination was normal. Left leg straight leg test was positive. Moderate radiculopathy of the left lower extremity (in constant pain, paresthesias and/or dysesthesias, and numbness) was shown. Ankylosis was not shown. No other neurologic abnormalities due to the Veteran's low back disability were noted. It was noted that the Veteran's IVDS did not result in any episodes that required bed rest prescribed by a physician in the past 12 months. 

On October 2022 back conditions examination (submitted within the evidentiary window of the October 2022 VA Form 10182) the diagnoses were degenerative disc arthritis, IVDS, and radiculopathy. The Veteran reported flare-ups with pain and restricted motion. Initial range of motion was abnormal with forward flexion to 70 degrees and extension, right and left lateral flexion, and right and left lateral rotation each to 15 degrees. Guarding or muscle spasm not resulting in abnormal gait or spinal contour was noted. Contributing factors of disability included less movement than normal, weakened movement, pain on movement, disturbance of locomotion, interference with sitting, and interference with standing were noted. Estimated range of motion during flare-ups were forward flexion to 45 degrees, and extension, right and left lateral flexion, and right and left lateral rotation each to 10 degrees. Muscle strength testing was normal. Muscle atrophy was not shown. Ankylosis was not shown. Sensory examination was normal. Left straight leg raising test was positive. Moderate radiculopathy
, right and left lateral flexion, and right and left lateral rotation each to 15 degrees. Guarding or muscle spasm not resulting in abnormal gait or spinal contour was noted. Contributing factors of disability included less movement than normal, weakened movement, pain on movement, disturbance of locomotion, interference with sitting, and interference with standing were noted. Estimated range of motion during flare-ups were forward flexion to 45 degrees, and extension, right and left lateral flexion, and right and left lateral rotation each to 10 degrees. Muscle strength testing was normal. Muscle atrophy was not shown. Ankylosis was not shown. Sensory examination was normal. Left straight leg raising test was positive. Moderate radiculopathy of the left lower extremity (in constant pain, paresthesias and/or dysesthesias, and numbness) was shown. No incapacitating episodes within the past 12 months was noted. 

The Veteran's degenerative arthritis of the lumbar spine with IVDS was assigned a rating of 10 percent based on painful motion with IVDS with no incapacitating episodes during the past 12 months and normal range of motion. See August 2016 Rating Decision. During the pendency of this appeal, on examination the Veteran's forward flexion is shown to be greater than 60 degrees but not greater than 85 degrees. Additionally, during the pendency of this appeal, the Veteran (through his attorney) has consistently reported that he experiences flare-ups of his low back. On October 2022 examination, the clinician provided an estimated range of motion during flare-ups of forward flexion to 45 degrees. This is consistent with the Veteran's statements regarding additional functional loss experienced during flare-ups. This degree of impairment shown during flare-ups shows a disability manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, and therefore the degree of impairment of the Veteran's degenerative arthritis of the lumbar spine with IVDS is best contemplated by the criteria for the 20 percent rating. Accordingly, an increased rating of 20 percent for degenerative arthritis of the lumbar spine with IVDS is warranted.

A higher 40 percent rating may be assigned for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. The evidence of record has not shown flexion to be so limited in the Veteran's thoracolumbar spine, to include on flare-ups or repeated use over time. Moreover, favorable ankylosis is not present and the Veteran's functional impairment is not so severe that it approximates such limitation. Accordingly, a higher, 40 percent rating is not warranted.

3. Entitlement to a rating in excess of 10 percent for a left ankle sprain.

Normal ranges of ankle motion are dorsiflexion 0 to 20 degrees and plantar flexion 0 to 45 degrees. 38 C.F.R. § 4.71a, and Plate II.  

The Veteran's left ankle disability is rated under Code 5271 (for limitation of ankle motion). However, under certain circumstances, the ankle may be rated under different Codes. 

Prior to February 7, 2021, Code 5262 provided 10 percent for tibia and fibular, impairment of with slight knee or ankle disability. A 20 percent rating was warranted for tibia and fibula impairment with moderate ankle disability. A 30 percent rating was warranted for tibia and fibula impairment with marked ankle disability. 

From February 7, 2021, Code 5262 provides that tibia and fibula impairment with malunion of the ankle should be rated under Codes 5270 or Code 5271 for the ankle (whichever results in the highest evaluation). 

Prior to February 7, 2021, Code 5271 provided for a 10 percent rating for moderate limitation of motion and a maximum 20 percent rating for marked limitation.  The terms "moderate" and "marked" were not defined within the Code. 

From February 7, 2021, Code 5271 provides for a 10 percent rating for moderate limitation of motion (noted as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), and a maximum 20 percent rating for marked limitation of motion (noted as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). See 38 C.F.R. § 4.71a.  

Also included within 38 C.F.R. § 4.71a are multiple Codes that evaluate ankle disabilities based on other manifestations, including Code 5270 (ankylosis of the ankle), Code 5272 (ankylosis of the sub
 February 7, 2021, Code 5271 provides for a 10 percent rating for moderate limitation of motion (noted as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion), and a maximum 20 percent rating for marked limitation of motion (noted as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). See 38 C.F.R. § 4.71a.  

Also included within 38 C.F.R. § 4.71a are multiple Codes that evaluate ankle disabilities based on other manifestations, including Code 5270 (ankylosis of the ankle), Code 5272 (ankylosis of the subastragalar or tarsal joint), Code 5273 (malunion of the os calcis or astragalus), and Code 5274 (astragalectomy).

On June 2022 ankle conditions examination, the diagnosis was left ankle sprain. The Veteran did not report flare-ups of the ankle. The Veteran reported that walking and sitting for too long makes ankle pain worse. No history of instability of the ankle was noted. Range of motion was abnormal with plantar flexion to 35 degrees and dorsiflexion to 15 degrees. Muscle atrophy was not shown. Ankylosis was not shown. It was noted that the Veteran did not (and had not) have shin splints (medial tibial stress syndrome), stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), and the Veteran had not had a talectomy (astragalectomy). It was noted that the Veteran did not use any assistive devices. 

On October 2022 ankle conditions examination, the diagnosis was left ankle sprain. The Veteran reported experiencing flare-ups with limited mobility and loss of motion. Range of motion was abnormal with plantar flexion to 35 degrees and dorsiflexion to 15 degrees. Functional loss was noted as less movement than normal, excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, and interference with standing were noted. Estimated range of motion during flare-ups was plantar flexion to 9 degrees and dorsiflexion to 4 degrees. Muscle strength testing was normal. Muscle atrophy was not shown. Ankylosis was not shown. Ankle instability was not shown or suspected. It was noted that the Veteran did not (and had not) have shin splints (medial tibial stress syndrome), stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), and the Veteran had not had a talectomy (astragalectomy). It was noted that the Veteran did not use any assistive devices.

The Veteran is not shown to have right ankle ankylosis, os calcis or astragalus, or astragalectomy. Therefore Codes 5270, 5272, 5273, and 5274 do not apply and will not be further discussed. Additionally, the evidence does not demonstrate impairment of the tibia or fibula, specifically malunion or nonunion. Accordingly, Code 5262 likewise does not apply.

A review of the evidence of record shows that the Veteran's left ankle disability more nearly approximates marked limitation of ankle motion. During the pendency of this appeal, the Veteran (through his attorney) has consistently reported that he experiences flare-ups of his left ankle. On October 2022 examination, the clinician provided an estimated range of motion during flare-ups of plantar flexion to 9 degrees and dorsiflexion to 4 degrees. This is consistent with the Veteran's statements regarding additional functional loss experienced during flare-ups. This degree of impairment shown during flare-ups shows a disability manifested by marked limited motion of the ankle, and therefore the degree of impairment of the Veteran's left ankle sprain is best contemplated by the criteria a 20 percent rating under Code 5271. Accordingly, an increased rating of 20 percent for the Veteran's left ankle sprain, based on marked limited motion, is warranted. This is the highest schedular rating available for limited motion of the ankle under DC 5271.

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

The Veteran's lower extremity radiculopathy is rated under Code 8520 (for sciatic nerve impairment), which provides that a 10 percent rating is warranted for mild incomplete paralysis of the nerve; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; and a 60 percent rating is warranted for severe incomplete paralysis
. Accordingly, an increased rating of 20 percent for the Veteran's left ankle sprain, based on marked limited motion, is warranted. This is the highest schedular rating available for limited motion of the ankle under DC 5271.

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

The Veteran's lower extremity radiculopathy is rated under Code 8520 (for sciatic nerve impairment), which provides that a 10 percent rating is warranted for mild incomplete paralysis of the nerve; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; and a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete of the sciatic nerve with foot drop (with no active movement of muscles below the knee). 38 C.F.R. § 4.124.

On June 2022 back conditions examination, moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the left lower extremity was noted. Involvement of the sciatic nerve was noted. 

On June 2022 peripheral nerves conditions examination noted a diagnosis of left lower extremity radiculopathy. Symptoms of moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness of the left lower extremity were noted. Muscle strength testing was normal. Reflex and sensory testing were also normal. Muscle atrophy was not shown. On evaluation, the sciatic nerve was noted to have mild incomplete paralysis left lower extremity. 

Both examinations conducted in June 2022 (back conditions examination and peripheral nerves condition examination) document moderate levels of symptoms of constant pain, paresthesias and/or dysesthesias, and numbness. In total such impairment of a moderate level is most consistent with a moderate level of impairment of the sciatic nerve. Under these circumstances, an increased (to 20 percent) rating is warranted for the Veteran's left lower extremity radiculopathy. 

A higher 40 percent rating is available for moderately severe incomplete paralysis of the sciatic nerve. Here, however, the Veteran's condition manifested in the moderate symptoms described above, and those symptoms were not shown on objective testing. Moreover, non-sensory symptoms were such as loss of muscle strength or reflexes were not shown. When involvement is wholly sensory, the rating should be for, at most, moderate incomplete paralysis. 38 C.F.R. § 4.71a, Diseases of the Peripheral Nerves. Accordingly, a higher 40 percent rating is not warranted.

 

 

Mike Sobiecki

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Staskowski, Nichole

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.