PARALYSIS OF SCIATIC NERVE

RAY BARTO SLABBEKORN, JR. · 2026 · Case ID: A26040408

DENIED

Summary

The Veteran, an Army veteran who served from January 1973 to December 1975 and June 1977 to August 1977, appeals the denial of an increased disability evaluation for right lower extremity radiculopathy. The Veteran is currently rated at 20 percent for this condition. The appeal stems from a July 2021 rating decision where the Department of Veterans Affairs Regional Office continued the 20 percent evaluation. The Veteran sought an increase, arguing that his condition warranted a higher rating based on his lay statements and a private medical evaluation. The Board reviewed the evidence, including the Veteran's statements, a VA C&P examination from June 2021, and a private medical evaluation from August 2024. The VA examiner found moderate incomplete paralysis with decreased sensation and normal motor function, gait, and reflexes. The private physician assessed the condition as moderate-severe, with significant sensory loss, severe pain during flare-ups, and functional impairment. However, the Board found that the contemporaneous medical evidence, including the VA examination and emergency department notes, did not support a finding of severe functional loss or paralysis. The Board applied the benefit-of-the-doubt rule but concluded the evidence persuasively weighed against a higher rating. Service connection for right lower extremity radiculopathy remains at 20 percent.

Rationale

Contemporaneous medical evidence did not support severe functional loss.; Evidence persuasively weighed against a high level of limitation or disability.; Benefit-of-the-doubt rule did not change the outcome as evidence favored denial of increase.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210902-183132

Full Decision Text

Citation Nr: A26040408
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 210902-183132
DATE: April 29, 2026

ORDER

Entitlement to an evaluation in excess of 20 percent for right lower extremity radiculopathy is denied.

FINDING OF FACT

The Veteran's right lower extremity radiculopathy did not result in a high level of limitation or disability in motor and/or reflex impairment, muscular atrophy, or complete paralysis.

CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.124a.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from January 1973 to December 1975, and June 1977 to August 1977.

The Department of Veterans Affairs (VA), Regional Office (RO) granted service connection for right lower extremity radiculopathy and assigned a 10 percent evaluation in a January 2012 rating decision. The Veteran requested an increase in his disability evaluation in May 2014. The RO increased the Veteran's evaluation from 10 percent to 20 percent, in an April 2015 rating decision. In June 2021 the Veteran filed a VA Form 20-0995 Decision Review Request: Supplemental Claim the Veteran requested an increase in his evaluation for right lower extremity radiculopathy. The RO continued the Veteran's 20 percent evaluation in a July 2021 rating decision.

In September 2021, the Veteran appealed that decision to the Board of Veterans' Appeals (Board), by filing a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). The Veteran selected the Hearing with a Veterans Law Judge review option. In October 2024, the Veteran's attorney withdrew the request for a hearing, and requested to submit a memorandum within 90 days. Pursuant to VA regulation, when an appellant withdraws a hearing request, "the Board's decision will be based on a review of evidence" that was of record at the time of the agency of original jurisdiction's decision, "and evidence submitted by the appellant or his representative within 90 days following receipt of the withdrawal." 38 C.F.R. § 20.302. Therefore, the Board has considered the evidence of record at the time of the July 2021 RO decision on appeal, as well as any evidence submitted by the Veteran within 90 days from receipt of his hearing withdrawal. 38 C.F.R. § 20.303.

The RO issued its decision on July 21, 2021. The Veteran withdrew his request for a hearing in a letter received on October 23, 2024. The 90 day period, which followed receipt of the withdrawal, expired on January 21, 2025. The Board received the Veteran's unsigned affidavit and an independent medical evaluation on January 9, 2025, and the Board considered that evidence in reaching this decision. A signed duplicate of the affidavit was received on May 27, 2025. Should the Veteran have additional evidence not otherwise submitted for consideration by VA, 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 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.

Francway request

The Veteran's attorney submitted a general objection as to the qualifications of the examiner who performed compensation and pension (C&P) examinations on the Veteran. That objection was accompanied by a request for the credentials of those examiners. For the purposes of the issue raised in this appeal, Dr. S.K., M.D. completed a C&P Peripheral Nerves Conditions Disability Benefits Questionnaire dated June 30, 2021. That examination is among those to which the Veteran's attorney objects. The claims file in this case contains an Appointment Information correspondence that was sent to the Veteran dated June 22, 2021. That correspondence reports the Tennessee license number for Dr. S.K., the fact that Dr. S.K. is Board Certified in Occupational Medicine, Dr. S.K. attended the University College of Medical Sciences, Delhi, India, he has less than one year of C&P experience, 24 years of
the credentials of those examiners. For the purposes of the issue raised in this appeal, Dr. S.K., M.D. completed a C&P Peripheral Nerves Conditions Disability Benefits Questionnaire dated June 30, 2021. That examination is among those to which the Veteran's attorney objects. The claims file in this case contains an Appointment Information correspondence that was sent to the Veteran dated June 22, 2021. That correspondence reports the Tennessee license number for Dr. S.K., the fact that Dr. S.K. is Board Certified in Occupational Medicine, Dr. S.K. attended the University College of Medical Sciences, Delhi, India, he has less than one year of C&P experience, 24 years of medical experience, and he has received at least 9 C&P related trainings. Given the nature and complexity of the medical findings and opinions that Dr. S.K. provided in this case, the Board finds that Dr. S.K. is competent to do so. The Board assigns high probative value to Dr. S.K.'s report given this information. The Board further finds that the Veteran and the Veteran's attorney have been provided an adequate summary of the examiner's qualifications and an opportunity to comment on the examiner's competency. The June 2021 Peripheral Nerve DBQ is the only C&P report that is both relevant to the issues on appeal and also placed in the claims file during a period of time when the Board may consider it as evidence in this appeal. Furthermore, the Board has based its decision on the totality of the evidence in the considerable record, including the Veteran's statements and the evidence in the private medical evidence submitted, and the remaining evidence. There is deficiency that prevents the Board from adjudicating this appeal at this juncture, including those described in Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) and its progeny.

Increased Rating

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether they were expressly raised by a veteran, in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

In considering the severity of a disability, it is essential to consider a veteran's entire medical history, so that the assigned rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.1,4.2, 4.3; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board considers the whole of a veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, when such statements pertain to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a
In increased rating claims, a veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, when such statements pertain to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007).

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. With respect to disabilities of the joints, the Board must consider whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45.

These provisions 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).

In Sharp v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." 29 Vet. App. 26, 32 (2017). The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)).

The intent of the Rating Schedule is to recognize painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform any of the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45.

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the claims.

Relevant to the present appeal, the Board recognizes that where a diagnostic code
38 C.F.R. § 4.45.

Relevant to the present appeal, the Board recognizes that where a diagnostic code does not explicitly contemplate the ameliorative effects of medication on a disability, the Board must evaluate the disability without regard to the ameliorative effects of the medication. See Ingram v. Collins, No. 23-1798 (Vet. App. March 12, 2025) (because the applicable diagnostic codes and special musculoskeletal regulations do not reference medication, the Board must discount beneficial medication effects when assigning an evaluation); Jones v. Shinseki, 26 Vet. App. 56, 62 (2012), see also McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) ("if [a diagnostic code] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication"). The Diagnostic Codes applicable to the Veteran's lumbar and radicular disabilities do not explicitly contemplate the ameliorative effects of medication. See 38 C.F.R. § 4.71a, Diagnostic Codes 5243, 8520.

Entitlement to an evaluation in excess of 20 percent for right lower extremity radiculopathy is denied.

In January 2025, the Veteran's attorney submitted a letter which he characterized as a memo in lieu of a hearing. In the letter, he stated the Veteran is entitled to an evaluation in excess of 20 percent for his right lower extremity radiculopathy. He reasoned that the Veteran's statement and the private physician's August 2024 report provided sufficient evidence to support the higher evaluation.

Rating Criteria

The Veteran's right lower extremity radiculopathy is currently rated under Diagnostic Code 5242-8520. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, the Veteran is being compensated for her right and left lower extremity radiculopathy under DC 8520 for impairment of the sciatic nerve associated with thoracolumbar spine arthritis, which is evaluated under DC 5242 for degenerative arthritis.

Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a. 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, which is the highest schedular rating under DC 8520, is warranted for complete paralysis of the sciatic nerve. See id.

The Rating Schedule does not define the words "mild," "moderate," and "severe" as used in the various Diagnostic Codes. The Board turns to a dictionary to define these terms. In this regard, mild is generally defined as "not severe." Merriam Webster's Collegiate Dictionary 787 (11th ed. 2003). Moderate is defined as "tending toward the mean or average amount." Id. at 798. Severe is usually defined as "a great degree" or "serious." Id. at 1140.

The VA Adjudication Procedure Manual (M21-1) includes definitions of the terms mild, moderate, and severe as used for incomplete paralysis and 38 C.F.R. § 4.124a. Although not bound by the M21-1 provisions, the Board has considered the definitions as general guidelines for each level of incomplete paralysis of the peripheral nerves and incorporates some of the examples of incomplete paralysis into the definitions of mild, moderate, and severe below for use in this appeal.

For the purposes of this appeal, the Board defines mild incomplete paralysis as manifesting with sensory deficits that are lower graded, less persistent, or effecting a small area. The symptoms may be recurrent, but not continuous. There may also be very minimal reflex or motor abnormality.
M21-1) includes definitions of the terms mild, moderate, and severe as used for incomplete paralysis and 38 C.F.R. § 4.124a. Although not bound by the M21-1 provisions, the Board has considered the definitions as general guidelines for each level of incomplete paralysis of the peripheral nerves and incorporates some of the examples of incomplete paralysis into the definitions of mild, moderate, and severe below for use in this appeal.

Moderate incomplete paralysis may be considered to include sensory-only symptoms that affect a larger area. It may also include lower graded sensory deficits, but with a combination of reflex or motor changes of a lower degree, such as muscle weakness and diminished or hyperactive reflexes.

A severe incomplete paralysis should be expected to manifest with motor or reflex impairment at a very high level of limitation or disability in signs or symptoms such as atrophy, weakness, or diminished or hyperactive reflexes. Some of these symptoms should be medically graded as severe or noted to be a greater degree of symptoms than the average person with this type of condition. Trophic changes may be seen in severe longstanding neuropathy. The signs and symptoms should be less than findings for complete paralysis, but there should be some resembling those of complete paralysis. See Dorland's Illustrated Medical Dictionary 1238 (33d ed. 2022).

Facts

An April 2020 medical treatment record documented the Veteran received a right knee brace. A June 2020 dermatology note documented the physician observed the Veteran was fully ambulatory without use of assistive devices.

In a June 2021 VA Form, 21-4138, Statement In Support of Claim, (statement) the Veteran reported that he had had difficulty getting out of bed and tying his shoes, due to his back disk disease in his lower back.

A July 2021 emergency department note documented the physician observed the Veteran's neurological higher function was normal, motor strength for all four extremities were 5 by 5, reflexes were symmetrical bilaterally, gait was normal, with no abnormal movements or sensory deficits.

In July 2021, the Veteran received a C&P examination for paralysis of the sciatic nerve (radiculopathy, right lower extremity). The examiner documented symptoms of pain, paresthesias and/or dysesthesias, and numbness attributable to the peripheral nerve conditions in the Veteran's right lower extremity as moderate. He documented the Veteran had a normal gait and decreased sensation to light touch. The examiner also documented moderate right sciatic incomplete paralysis. The Veteran's external and internal popliteal, musculocutaneous, anterior and posterior tibia, anterior crural, internal saphenous, obturator, external cutaneous, and Illio-inguinal nerves were normal. No assistive devices were documented. The Veteran reported his condition impacted his ability to walk and stand for prolong periods of time.

A January 2022 emergency department note documented the Veteran fell, and was experiencing back pain. The Veteran received an MRI of his lumbosacral spine. The physician compared the resulting images to images from a December 2021 study. The Veteran's sacrum and sacroiliac joints were observed to have remained grossly unremarkable. No acute fractures or malalignment were observed. There was mild multilevel degenerative spondylosis and other chronic/nonacute findings.

In January 2025, the Veteran provided an August 2024 independent medical evaluation. The physician stated that the Veteran's right lower extremity radiculopathy, incomplete paralysis, sciatic nerve associated with degenerative disc disease, weakness of the muscles between the knee and foot with inability to strengthen the right calf muscles, degenerative joint disease (facet joints) was moderate severe in nature. He stated that there was a high level of disability that included sensory loss, and severe pain that was incapacitating during flareups. The Veteran had to lay down in bed until his symptoms sufficiently mitigated.

His right lower extremity radiculopathy, incomplete paralysis, femoral nerve associated with degenerative disc disease, weakness of the muscles between the knee and foot with inability to strengthen the right calf muscles degenerative joint disease (facet joints) was moderate in nature, with significant sensory findings that included pain.

In January 2025, the Veteran
degenerative disc disease, weakness of the muscles between the knee and foot with inability to strengthen the right calf muscles, degenerative joint disease (facet joints) was moderate severe in nature. He stated that there was a high level of disability that included sensory loss, and severe pain that was incapacitating during flareups. The Veteran had to lay down in bed until his symptoms sufficiently mitigated.

In January 2025, the Veteran also provided an affidavit in which he stated that he suffered paralysis and pain in his right lower extremity. He had noticed a greater difficulty with his right leg, and believed that it had worsened. He had required a cane to ambulate and had been prescribed medication for his constant nerve pain and numbness. He had experienced occasional burning sensations in his right foot, at night. He had fallen due to foot numbness.

Analysis

As the Veteran is in receipt of a 20 percent evaluation, the Board must consider the criteria for a 40, 60 and 80 percent evaluation. As noted above, a 40 percent evaluation is assigned for "moderately severe" incomplete paralysis, and a 60 percent evaluation is assigned for "severe, with marked muscular atrophy," incomplete paralysis. M21-1, V.iii.12.A.2.c.

The Board conducted a careful review of the record, giving due consideration to both the medical evidence and the Veteran's statements. The record documents the Veteran had difficulty rising from the bed, sensory deficits, muscle weakness, and diminished reflexes. The Board considered the Veteran's statements concerning his occasional pain, tripping, and trouble sleeping. It also consider the private physician's assessment of the Veteran's disability. However, when this evidence is considered along with the contemporaneous observation of the Veteran's treating physicians, the greater weight of the evidence does not favor a finding that the Veteran's symptoms resulted in a high level of limitation or disability. Id.

In considering the evidence, the Board finds the Veteran's symptoms did not more closely approximate complete paralysis. There is little evidence the Veteran experienced foot dangles and drops, the lack of active movement of muscles below the knee, or weakened or lost flexion of the knee. As such, the evidence persuasively weighs against finding an 80 percent evaluation is warranted in this case. Id.

The Board acknowledges that the Veteran used assistive devices due to his right lower extremity radiculopathy. The Veteran stated that he had used a cane, and his medical records documented the Veteran had a right knee brace. 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 reaching its conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "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). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively weighs against a finding that the Veteran's right lower extremity radiculopathy resulted in a high level of limitation or disability in motor and/or reflex impairment, muscular atrophy, or complete paralysis. Thus, the benefit-of-the-doubt rule does not change the outcome of this issue. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch, supra.

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Austin, L

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

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