Case A26038839

M. SCHLICKENMAIER · 2026 · Case ID: A26038839

MIXED

Summary

The Veteran, who served in the U.S. Navy from December 1996 to December 2000, appeals the reduction of his ratings for bilateral lower extremity sciatic radiculopathy from 40 percent to 20 percent, and the dismissal of his appeal for restoration of Dependents' Educational Assistance (DEA) benefits. The Board found the DEA appeal moot, as the agency of original jurisdiction had already granted the requested benefit. Regarding the radiculopathy ratings, the Board reviewed the Veteran's claim that the reduction, based on Clear and Unmistakable Error (CUE), was improper. The Board noted that the initial 40 percent ratings were granted in April 2024, based on a February 2024 VA examination finding moderate incomplete paralysis in the right lower extremity and mild in the left. However, the Board found these findings inconsistent with other examination details, such as severe pain, numbness, diminished strength, abnormal gait, and the need for a cane, which suggested the paralysis was more than wholly sensory. Resolving reasonable doubt in the Veteran's favor, the Board found the reduction improper and restored the 40 percent ratings for both conditions. The Board also remanded the claim for service connection for erectile dysfunction, citing a pre-decisional duty to assist error by the agency of original jurisdiction, which failed to obtain a medical opinion regarding the Veteran's exposure to toxic substances in Southwest Asia.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250128-511935

Full Decision Text

Citation Nr: A26038839
Decision Date: 04/27/26 Archive Date: 04/27/26

DOCKET NO. 250128-511935
DATE: April 27, 2026

ORDER

The appeal with respect to restoration of basic eligibility for education benefits under Chapter 35, Title 38, United States Code (Dependents' Educational Assistance (DEA)) is dismissed.

Restoration of a 40 percent rating for right lower extremity sciatic radiculopathy is granted, effective January 6, 2024.

Restoration of a 40 percent rating for left lower extremity sciatic radiculopathy is granted, effective January 6, 2024.

REMANDED

Entitlement to service connection for erectile dysfunction is remanded.

FINDINGS OF FACT

1. In a January 2026 rating decision, the agency of original jurisdiction (AOJ) restored entitlement to DEA effective July 2, 2018, without a break in eligibility, while the current appeal was pending.

2. The weight of the evidence is against a finding that the grant of an initial rating of 40 percent for radiculopathy of the right lower extremity sciatic nerve was clearly and unmistakably erroneous.

3. The weight of the evidence is against a finding that the grant of an initial rating of 40 percent for radiculopathy of the left lower extremity sciatic nerve was clearly and unmistakably erroneous.

CONCLUSIONS OF LAW

1. There remains no case or controversy with respect to the Veteran's appeal involving entitlement to restoration of basic eligibility for education benefits under Chapter 35 (DEA). 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.103, 20.104.

2. The criteria for restoration of a 40 percent rating for right lower extremity sciatic radiculopathy from January 6, 2024 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(d), 4.124a, Diagnostic Code 8520.

3. The criteria for restoration of a 40 percent rating for left lower extremity sciatic radiculopathy from January 6, 2024 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(d), 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Navy from December 1996 to December 2000. His decorations include the Sea Service Deployment Ribbon.

These matters come to the Board of Veterans' Appeals (Board) on appeal from April 2024 and January 2025 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office. Thereafter, he timely appealed to the Board of Veterans' Appeals (Board) by filing a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) in January 2025, requesting direct review of the evidence considered by the AOJ. 38 C.F.R. §§ 20.201, 20.202(b)(1).

Under the direct review option, the Board may only consider the evidence of record at the time of issuance of the AOJ rating decisions on appeal. 38 C.F.R. § 20.301. The Board cannot consider evidence submitted after that decision was promulgated.

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the Veteran's claim. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

As to the Veteran's claim for service connection for erectile dysfunction, the Board is remanding that claim to the AOJ for correction of a pre-decisional duty to assist error. The AOJ will consider any additional evidence that has been submitted when that claim is readjudicated. 38 C.F.R. § 3.103(c)(2)(ii).

In the April 2024 rating decision, the AOJ made a favorable finding that new and relevant evidence
3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

In the April 2024 rating decision, the AOJ made a favorable finding that new and relevant evidence had been presented or secured to warrant readjudication of the previously denied claim of service connection for erectile dysfunction. See April 2024 rating decision. ("In support of your claim, new and relevant evidence has been received and your claim is now reconsidered"). The Board is bound by those favorable findings. 38 C.F.R. § 3.104(c).

1. Entitlement to restoration of basic eligibility for education benefits under Chapter 35 (DEA) is dismissed.

Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.

During the pendency of the current appeal seeking restoration of initial 40 percent ratings for right and left lower extremity radiculopathy and reinstatement of DEA benefits, the AOJ issued a January 2026 rating decision which awarded service connection for posttraumatic stress disorder (PTSD), entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), special monthly compensation, and DEA benefits, all effective from July 2, 2018.

Accordingly, the Board finds that the Veteran's claim currently on appeal is moot because he already received the benefit, reinstatement of basic eligibility for DEA, that he seeks on appeal. In view of the foregoing, the Board finds that there are no factual or legal questions remaining for appellate consideration as to the issue, and the appeal as to the issue is dismissed. 38 U.S.C. § 7105(d).

2. Whether reduction of the rating assigned for the Veteran's right lower extremity sciatic radiculopathy from 40 percent to 20 percent on the basis of CUE was proper

3. Whether reduction of the rating assigned for the Veteran's left lower extremity sciatic radiculopathy from 40 percent to 20 percent on the basis of CUE was proper

In the January 2025 rating decision, the AOJ reduced the rating assigned for the Veteran's right and left lower extremity radiculopathy from 40 percent to 20 percent based on a finding of CUE in the April 2024 rating decision that assigned the 40 percent rating. The Veteran disputes these rating reductions.

As an initial matter, the Board notes that the evaluation of a service-connected disability may be reduced when warranted by the evidence. When a reduction will result in discontinuance or reduction in the amount of compensation being paid, the AOJ must first issue a rating decision proposing a reduction and allowing a veteran the opportunity to respond. See 38 C.F.R. § 3.105(e).

An April 2024 rating decision granted service connection for right and left lower extremity radiculopathy with initial 40 percent disability ratings. The AOJ found that the evidence showed moderately severe incomplete paralysis in each lower extremity. The rating decision narrative did not identify the evidentiary basis for these awards, but listed as evidence a February 2024 VA peripheral nerves examination.

Subsequently, the AOJ issued a rating decision and notification letter in October 2024 proposing to reduce the ratings from 40 percent to 20 percent on the basis of CUE in the April 2024 rating decision. The rating decision explained that when symptoms are subjective and objective symptoms are shown to be manifested by sensory impairment the corresponding evaluation should be mild or at most moderate.

As the proposed reduction in rating would result in a reduction in compensation, the Veteran was notified of the proposal and advised of the opportunity to present additional evidence within 60 days and to request a personal hearing within 30 days. The Veteran did not request a hearing but submitted argument against the proposed reduction. Thereafter, the reduction was effectuated in the January 2025 rating decision on appeal, which reduced the assigned ratings from 40 percent to 20 percent effective January 6, 2024. The Veteran was notified of the reduction in a January 2024 notification letter. The decision made the reductions final on April 1, 2025, the first day of
evaluation should be mild or at most moderate.

Generally, specific requirements must be met to properly effectuate a reduction in rating. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The governing legal authority provides that where, as here, ratings have been in place for less than five years, a reexamination disclosing improvement, physical or mental, will be sufficient to support a reduction in rating. See 38 C.F.R. § 3.344(c). In the instant case, however, the reduction was based on CUE on the part of VA, not on any alleged improvement in or re-evaluation of the Veteran's disabilities-in other words, the reduction was not based on medical evidence, but on a legal bar to the previously assigned rating.

CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44.

Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id.

CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992).

The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that
(1992).

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 DCs 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, where 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.

Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." The term "incomplete paralysis," with this and other peripheral nerve injuries, 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 ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, note at "Diseases of the Peripheral Nerves."

VA has generally considered that the mild level of evaluation would be more reasonably assigned when sensory symptoms are recurrent but not continuous assigned a lower medical grade reflecting less impairment and/or affecting a smaller area in the nerve distribution. The moderate level of evaluation would be reserved for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are continuously assigned a higher medical grade reflecting greater impairment and/or affecting a larger area in the nerve distribution. This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength.

The M21-1 describes mild incomplete paralysis as a disability "limited to sensory deficits that are lower graded, less persistent, or affecting a smaller area." Part V, sbpt. iii, ch. 12, sec. A.2.c. Moderate incomplete paralysis should be "reserved for the most significant cases of sensory-only impairment," where the sensory involvement covers "a larger area in the nerve distribution." Id. The M21-1 provides that examples of a moderate disability include "motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate." Id. A moderately severe evaluation is available when there is "[m]otor and/or reflex impairment (i.e., weakness, diminished or hyperactive reflexes) at a grade reflecting a higher level of limitation or disability." Id. Atrophy may, but need not, be present for a moderately severe rating.

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. §
Id. Atrophy may, but need not, be present for a moderately severe rating.

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).

The February 2024 VA peripheral nerves conditions examination noted severe constant pain, as well as severe numbness and paresthesias and/or dysesthesias that was attributable to the Veteran's bilateral lower extremity radiculopathy. The examiner found that the Veteran had moderate incomplete paralysis of the right lower extremity sciatic nerve and mild incomplete paralysis of the left lower extremity sciatic nerve. Upon examination, muscle strength testing was noted to be diminished to 4/5 (active movement against some resistance) for ankle plantar flexion, bilaterally, and right knee flexion. Light touch testing noted decreased sensation for the right thigh/knee and right lower leg/ankle. No trophic changes were noted. The Veteran was noted to walk with a cane and to have an antalgic gait. The examination report noted that the Veteran's bilateral lower extremity radiculopathy impacted his ability to work because he had difficulty climbing stairs and standing/walking for long periods of time due to pain.

In a November 2024 Statement in Support of Claim (VA Form 21-4138), the Veteran reported continued bilateral pain in his foot, ankle, calf, knee, and thigh. In a subsequent November 2024 VA Form 21-4138, he reiterated that he has been experiencing bilateral lower extremity sciatic pain for years.

In view of the above, the Board finds that both the rating criteria and the relevant evidence weigh against a finding that the grant of an initial ratings of 40 percent for radiculopathy of each lower extremity was clearly and unmistakably erroneous.

The Board observes that while the February 2024 examiner found the Veteran to have moderate incomplete paralysis of the right lower extremity sciatic nerve and mild incomplete paralysis of the left lower extremity sciatic nerve, the Board is not bound by the descriptions of the VA examiners. Additionally, these findings are incongruent with the examiner's other aforementioned findings concerning the Veteran's lower extremity symptoms. Specifically, the bilateral lower extremity radiculopathy resulted in symptoms of severe constant pain, severe paresthesias and/or dysesthesias, severe numbness, as well as diminished strength and decreased sensation. Additionally, the examiner noted that the Veteran had an abnormal gait and required the regular use of a cane. Moreover, the examiner found that the Veteran's bilateral lower extremity radiculopathy impacted his ability to work because of severe pain and difficulty climbing stairs and standing/walking for long periods. As such, the February 2024 VA examination shows that the Veteran's radiculopathy manifested beyond being wholly sensory.

In view of the above, and resolving reasonable doubt in the Veteran's favor, the Board finds that it is not undebatable that the relevant evidence supported that the grant of an initial rating of 40 percent for radiculopathy of each lower extremity was clearly and unmistakably erroneous. Consequently, the ratings reduction not being proper, the ratings of 40 percent for radiculopathy of the sciatic nerve, bilaterally, are restored.

REASONS FOR REMAND

1. Entitlement to service connection for erectile dysfunction is remanded.

On August 10, 2022, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) was enacted. Section 303 of this law provides that, if a Veteran submits a claim for service connection with evidence of disability and evidence of participation in a toxic exposure risk activity, then VA shall obtain a medical opinion as to whether it is at least as likely as not that there is a nexus between the disability and the toxic exposure risk activity. 38 U.S.C. § 1168. The PACT Act created a new presumption for service connection for certain
ASONS FOR REMAND

1. Entitlement to service connection for erectile dysfunction is remanded.

Here, the AOJ should have obtained a medical opinion to address whether the Veteran's erectile dysfunction was due to a TERA. A review of the record documents a diagnosis of erectile dysfunction. An April 2023 TERA Memorandum shows that the Veteran participated in a TERA based on his service in Southwest Asia. See also April 2024 Rating Decision (favorable findings). However, there is otherwise insufficient evidence to address the claim. Under such circumstances, a TERA examination is warranted, and the AOJ erred in not obtaining one prior to the adjudication of this claim. The claim is remanded.

The matters are REMANDED for the following action:

Arrange to have the Veteran scheduled for a VA examination for erectile dysfunction. The examiner should review the record. All indicated tests should be conducted and the results reported.

After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's erectile dysfunction had its onset in, or is otherwise attributable to, service, including any toxic exposures he experienced in service. In providing an opinion, the examiner is asked to consider the total potential exposure through all applicable military deployments and the synergistic, combined effect of all toxic exposure risk activities of the Veteran.

A complete medical rationale for all opinions expressed must be provided.

M. Schlickenmaier

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Kettler, 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.

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