PERIPHERAL NERVE DISORDERS

A. ODYA-WEIS · 2026 · Case ID: A26036871

DENIED

Summary

The Veteran, who served from December 2002 to August 2004, appeals the denial of increased disability ratings for right and left lower extremity femoral radiculopathy. The Veteran currently holds 20 percent ratings for both conditions under Diagnostic Code 8526, and sought ratings in excess of 20 percent. The Board reviewed the evidence of record at the time of the prior October 2023 rating decision, including the Veteran's testimony and VA treatment records. The Veteran reported symptoms of numbness, tingling, and moderate intermittent pain and paresthesias in his bilateral lower extremities. The August 2023 VA Lumbar Spine examination noted severe numbness in the bilateral lower extremities, decreased sensory disturbance, hypoactive deep tendon reflexes, and positive straight leg raising tests bilaterally. However, the Board found that these findings did not more nearly approximate severe incomplete paralysis, which is required for a rating higher than 20 percent under DC 8526. The Board noted that while the Veteran received a one-time epidural shot, this treatment occurred prior to the period on appeal and did not affect the evaluation. Ultimately, the Board concluded that the evidence did not support ratings in excess of 20 percent for either the right or left lower extremity femoral radiculopathy, and therefore denied the claims for increased ratings.

Rationale

Veteran's symptoms did not meet criteria for severe incomplete paralysis; Findings of moderate pain/paresthesias and severe numbness did not warrant higher rating; Treatment prior to appeal period did not impact current evaluation

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

8526

Docket No.

251219-616294

Full Decision Text

Citation Nr: A26036871
Decision Date: 04/21/26 Archive Date: 04/21/26

DOCKET NO. 251219-616294
DATE: April 21, 2026

ORDER

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

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

FINDINGS OF FACT

1. Throughout the review period, the Veteran's right lower extremity radiculopathy of the femoral nerve did not more nearly approximate severe incomplete paralysis.

2. Throughout the review period, the Veteran's left lower extremity radiculopathy of the femoral nerve did not more nearly approximate severe incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent rating for right lower extremity femoral radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code (DC) 8526.

2. The criteria for a rating in excess of 20 percent rating for left lower extremity femoral radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, DC 8526.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 2002 to August 2004.

By way of history, in October 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an October 2023 decision. In January 2025, the RO issued the HLR decision on appeal, which considered the evidence of record at the time of the prior May 2020 decision. Therefore, the Board may only consider the evidence of record at the time of the October 2023 decision.

In the December 2025 notice of disagreement (NOD) (VA Form 10182, Decision Review Request: Board Appeal), the Veteran elected the Evidence Submission lane. As this is an Evidence Submission lane appeal, the Board has considered the evidence of record at the time of the October 2023 rating decision, and evidence submitted within 90 days of the election of the Evidence Submission lane.

Increased Ratings

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a the most persuasive evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2021). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.
the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2021). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his right and left lower extremity neuropathy disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities.

The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, supra at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509.

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

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

The Veteran has current 20 percent ratings for right and left lower extremity radiculopathy of the femoral nerve under Diagnostic Code 8526.

The radiculopathy of the femoral nerve has been evaluated under the criteria set forth in 38 C.F.R. § 3.124a, DC 8526. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the quadriceps extensor muscles is rated as 40 percent disabling.

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
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).

The maximum rating which may be assigned for neuritis not characterized by organic changes will be for moderate, or with sciatic nerve involvement, for moderately severe incomplete paralysis. See 38 C.F.R. § 4.123.

The terms "mild," "moderate," "severe," and the like are not defined in the regulations relevant to evaluating peripheral nerve disabilities.

However, for the sake of clarity, in this case, "mild" corresponds to slight symptoms sufficient to support the diagnosis, generally characterized by less persistent sensory deficits, or those affecting a small area, and or very minimal reflex or motor abnormalities.

The Board considers "moderate" to correspond to the maximum evaluation available for sensory-only impairment, characterized by symptoms described by the Veteran and considered significantly disabling medically, and/or involving a larger area in nerve distribution. Additionally, moderate can correspond to combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes with or without sensory impairment, graded as medically moderate.

Finally, "severe" is characterized by motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. Although severe incomplete paralysis cases should show findings substantially less than those for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs or symptoms that resemble some of those expected in cases of complete paralysis of the nerve.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). This benefit-of-the-doubt rule applies if the competing evidence is nearly equal but does not apply when the evidence persuasively favors one side or the other. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021).

During an August 2023 VA Lumbar Spine examination, the Veteran reported symptoms of numbness and tingling in his legs. Treatment included physical therapy interventions and an epidural shot. Upon examination, the examiner found the Veteran had moderate intermittent pain, moderate paresthesias and/or dysesthesias, and severe numbness of the bilateral lower extremities involving the bilateral L2/L3/L4 femoral nerve roots (and the L4/L5/S1/S2/S3 sciatic nerve roots). Abnormal neurological findings were due to radiculopathy. Sensory disturbance was shown to be decreased. There was no muscle atrophy. Deep tendon reflexes were rated as hypoactive. Straight leg raising testing was positive bilaterally.

The Board has reviewed the Veteran's VA treatment records, and notes that throughout the period of appeal, the Veteran has been treated for his radiculopathy. See, e.g., May 25, 2023 VA treatment record. However, these records do not describe the Veteran's right and left lower extremity radiculopathy of the femoral nerve with sufficient specificity to form the basis of a rating decision and the Board finds that they neither support nor refute the Veteran's contention that his symptoms merit ratings in excess of 20 percent disabling.

Overall, upon review of the entirety of the relevant evidence, the Veteran's disability picture did not more nearly approximate severe incomplete paralysis.

The Veteran's disability was manifested by pain,
ally.

Overall, upon review of the entirety of the relevant evidence, the Veteran's disability picture did not more nearly approximate severe incomplete paralysis.

The Veteran's disability was manifested by pain, paresthesias and/or dysesthesias, tingling, and numbness. The August 2023 VA examiner characterized the Veteran's intermittent pain and paresthesias and/or dysesthesias as moderate and his numbness as severe.

The findings shown, however, did not more nearly approximate severe incomplete paralysis. Sensory disturbance was shown to be decreased, but not absent for all areas tested. Pain, paresthesias and/or dysesthesias were shown to be moderate but not severe. The Veteran's disability picture was not shown to be manifested by trophic changes, loss of reflexes, or muscle atrophy (or decreased muscle strength).

The most probative evidence of record did not indicate that the Veteran's disability picture more nearly approximated that of severe incomplete paralysis for the femoral nerve during the relevant review period and thus higher ratings under DC 8526 are not warranted.

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In making the above findings, the Board is cognizant of the fact that the examination report notes a one time epidural shot was used to treat his lower extremity radiculopathy. However, VA treatment records reflect the one time injection was completed before the period on appeal. See, e.g., September 2019 VA treatment record (reporting past injection one time to treat radiculopathy); November 2019 VA treatment record (noting a past injection had minimal improvement in symptoms during a neurosurgery consultation). While the Court has held that in assigning a disability rating, VA may not consider the ameliorative effects of medication, the Board finds the record reflects that this treatment was prior to the period contemplated on appeal and does not affect the evaluation of the radiculopathy although noted as historical medical information on the examination report. Jones v. Shinseki, 26 Vet. App. 56 (2012); Ingram v. Collins, 38 Vet. App. 130 (2025).

In sum, throughout the review period, the Veteran's right and left lower extremity radiculopathy of the femoral nerve disability did not more nearly approximate severe incomplete paralysis. As such, throughout the review period, the criteria for disability ratings in excess of 20 percent for right and left lower extremity radiculopathy of the femoral nerve under DC 8526 were not met and the Veteran's claims are therefore denied. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8526.

A. Odya-Weis

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Griffith, S.

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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