Back to BVA DecisionsMIXEDSpecial Benefit TDIU Docket No. 210917-186042
PARALYSIS OF SCIATIC NERVE
MARJORIE A. AUER · 2026 · Case ID: A26040624
Summary
The veteran served from October 2010 to July 2011. The veteran appeals a September 2020 rating decision, seeking an increased rating for radiculopathy of the sciatic nerve of the left lower extremity and challenging the denial of a compensable rating for a strain of the right hip with limitation of extension, as well as entitlement to TDIU. The Board reviewed evidence from the evidentiary window, including August 2020 and March 2015 VA peripheral nerve examinations. These examinations reflected mild paresthesias, decreased sensation, hypoactive reflexes, and mild incomplete paralysis of the left sciatic nerve. The Board found this evidence persuasive, concluding that the symptoms did not meet the criteria for a rating higher than the existing 10 percent. The Board acknowledged the veteran's competence and credibility to report symptoms but gave greater weight to objective clinical findings. The benefit of the doubt doctrine was considered but found not applicable as the evidence persuasively favored denial of an increased rating. For the right hip claim, the Board remanded for a VA examination to assess the ameliorative effects of medication (Gabapentin and Flexeril) on the service-connected hip disability and to determine if the condition presented the functional equivalent of ankylosis. The TDIU claim was also remanded for readjudication consistent with the resolution of the hip claim and consideration of psychiatric reports received after the appeal period.
Rationale
Evidence indicates mild incomplete paralysis of the left sciatic nerve.; Symptoms limited to sensory deficits, less persistent or smaller area than 'moderate' disability.; VA examinations found no more than mild symptoms.
Full Decision Text
Citation Nr: A26040624 Decision Date: 04/30/26 Archive Date: 04/30/26 DOCKET NO. 210917-186042 DATE: April 30, 2026 ORDER Entitlement to a rating in excess of 10 percent for radiculopathy of the sciatic nerve of the left lower extremity is denied. REMANDED The claim for a compensable rating for a strain of the right hip with limitation of extension is remanded. The claim for entitlement to individual unemployability (TDIU) is remanded. FINDING OF FACT Radiculopathy of the sciatic nerve of the left lower extremity results in no more than mild incomplete paralysis. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for radiculopathy of the sciatic nerve of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2010 to July 2011. This case is before the Board of Veterans' Appeals (Board) by way of a September 2021 notice of disagreement (VA Form 10182) with respect to a September 2020 rating decision. [Two VA Forms 10182 were submitted in September 2021 but as the only issues adjudicated in the September 2020 rating decision are those listed on the first page of this decision, the additional issues referenced by the Veteran in a VA Form 10182 received in September 2021 are not properly before the Board for appellate review.] The Veteran in her VA Form 10182 selected the Hearing Before a Veterans Law Judge (VLJ) docket under the Appeals Modernization Act. The Veteran ultimately cancelled a hearing scheduled before a VLJ in April 2025. As such, the Board may only consider the evidence of record at the time of the September 2020 rating decision on appeal and that received within the 90-day period after the scheduled hearing. Therefore, the psychiatric reports received in February 2025 cannot be considered herein but may be considered by the Agency of Original Jurisdiction (AOJ) upon remand. If the Veteran would like VA to consider any evidence that the Board could not consider, she may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence in connection with any Supplemental Claim submitted is deemed new and relevant, VA will issue another decision on such a Supplemental Claim that considers the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. I. Legal Criteria When there is an approximate balance in the 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. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See also Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). Only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application. Id. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection 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. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection 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. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Mild disability due to incomplete paralysis affecting the upper radicular nerve group (fifth and sixth cervical) of the major or minor extremity warrants a 20 percent rating under DC 8510. A rating in excess of 20 percent for the major or minor extremity under this diagnostic code requires moderate incomplete paralysis. The Board acknowledges that the terms "mild," and "moderate" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Webster's II New College Dictionary defines "mild" as "not severe." Id. at 694 (1995). A synonym for "mild" is "slight," and definitions for "slight" include "small in size, degree, or amount." Id. at 1038. The definitions for "moderate" include "of average or medium quantity, quality, or extent." Id. At 704. The VA Adjudication Procedures Manual, M21-1 (Manual) provides benchmarks for mild, moderate, and severe peripheral nerve conditions. See M21-1, V.iii.12.A.2.c (Assigning Level of Incomplete Paralysis, Neuritis, or Neuralgia). "Mild" disability due to incomplete paralysis contemplated by 38 C.F.R. § 4.124a as set forth in the manual is described as that being limited to sensory deficits (numbness/tingling) that are lower graded, less persistent, or cover a smaller area than contemplate by "moderate" disability. "Moderate," disability due to incomplete paralysis as defined by the Manual is described as a larger area affected than that explained by "mild" disability and combines significant sensory changes with lower-degree reflex or motor changes (e.g., mild muscle weakness). "Moderately severe" disability due to incomplete paralysis as defined by the Manual is characterized by motor and/or reflex impairment, such as weakness or diminished reflexes, representing a high level of limitation. "Severe" disability due to incomplete paralysis as defined by the manual is characterized by high-level limitation, marked muscular atrophy, trophic changes, and symptoms resembling complete nerve paralysis. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on 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. Mild disability due to incomplete paralysis of the sciatic nerve warrants a 10 percent rating. 38 C.F.R. § 4.124a, DC 8520. Moderate disability due to incomplete paralysis of the sciatic nerve warrants a 20 percent rating. ? II. Analysis Service connection has been in effect for radiculopathy of the sciatic nerve of the left lower on 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. Mild disability due to incomplete paralysis of the sciatic nerve warrants a 10 percent rating. 38 C.F.R. § 4.124a, DC 8520. Moderate disability due to incomplete paralysis of the sciatic nerve warrants a 20 percent rating. ? II. Analysis Service connection has been in effect for radiculopathy of the sciatic nerve of the left lower extremity at a disability rating of 10 percent under DC 8520 throughout the appeal period. The Veteran seeks a higher rating for this disability. The pertinent evidence during the evidentiary window for consideration to assess the severity of this condition includes reports from an August 2020 VA peripheral nerve examination that reflected mild paresthesias/dysesthesias in the left lower extremity but not no pain or numbness therein. Strength with left knee extension was to 4/5 and there were hypoactive reflexes in the left knee and ankle. Sensation was decreased in the left lower leg, ankle, and foot. There were no trophic changes. There was incomplete paralysis of the left sciatic nerve denoted to be mild in degree. Prior thereto, a March 2015 VA peripheral nerves examination also showed mild incomplete paralysis of the left sciatic nerve. In short, as the most persuasive evidence of record from the VA examinations cited above and the other clinical evidence for consideration indicates that there is no more than mild symptoms associated with incomplete paralysis of the sciatic nerve of the left lower extremity-characterized as being limited to sensory deficits such as numbness or tingling that are lower graded, less persistent, or cover a smaller area than contemplated by "moderate" disability-a rating in excess of 10 percent is not warranted for the service connected radiculopathy of the sciatic nerve of the left lower extremity under 38 C.F.R. § 4.124a, DC 8520. The Board notes that in adjudicating the matter above, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In this regard, the Board acknowledges that the Veteran is competent to provide evidence about what she observes or experiences, although no specific contentions as to such have been presented. For example, she is competent to report that she experiences certain symptoms, and she is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran would be competent and credible to assert that her left lower extremity radiculopathy is worse than the rating to which the Veteran has been found herein to be entitled to during this period. However, any such assertion is outweighed by the competent and credible clinical examination reports for the period in question that evaluated the true extent of impairment based on objective data coupled with the lay complaints. In short, professional clinicians have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with any subjective complaints. The Veteran or her attorney have not demonstrated that they have such medical expertise. For these reasons, greater evidentiary weight is placed on the physical examination findings. Also, as stated above, the rating criteria are specific in indicating what criteria must be demonstrated objectively. Finally, in making the negative rating determination above, the undersigned has considered the doctrine of reasonable doubt but finds that the evidence is persuasively against the assignment of a rating in excess of 10 percent for radiculopathy of the sciatic nerve of the left lower extremity. As such, a rating in excess of 10 percent for this disability may not be assigned. 38 U.S.C. §5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Lynch, Gilbert, supra. REASONS FOR REMAND First with respect to the claim for a compenable rating for a strain of the right hip with limitation of extension, the Court has emphasized the importance of considering the ameliorative effects of medication when determining the proper compensation to be assigned for musculoskeletal disorders, such as the right hip disability at issue. Ingram v. Collins, 38 Vet. App. 130 (2025). As such, As such, a rating in excess of 10 percent for this disability may not be assigned. 38 U.S.C. §5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Lynch, Gilbert, supra. REASONS FOR REMAND First with respect to the claim for a compenable rating for a strain of the right hip with limitation of extension, the Court has emphasized the importance of considering the ameliorative effects of medication when determining the proper compensation to be assigned for musculoskeletal disorders, such as the right hip disability at issue. Ingram v. Collins, 38 Vet. App. 130 (2025). As such, and as the August 2020 VA hip examination indicates the Veteran takes Gabapentin and Flexeril for right hip pain, a VA examination of the right hip that includes an opinion as to the ameliorative effects of medication on the service-connected right hip disability is necessary to fulfill the duty to assist. Also, in Chavis v. McDonough, the Court held that limitations in range of motion can result in the functional equivalent of ankylosis. See 34 Vet. App. 1 (2021). As such-particularly given DC 5250 which provides ratings on the basis of ankylosis of the hip-an opinion as to whether there is the functional equivalent of ankylosis in the right hip is also necessary to fulfill the pre-decisional duty to assist with respect to the claim for an increased rating that is being remanded. With respect to TDIU, at the resolution of the claim that is being remanded could potentially impact the adjudication of the this claim, the Board must defer its consideration of the claim for TDIU at this time. This will also afford the AOJ the opportunity to conduct the development and consideration with respect to this claim requested below. For the reasons set forth above, this case is REMANDED for the following action: 1. Afford the Veteran a VA examination of the right hip that includes an assessment of the symptoms and related impairment during the appeal period that would have been present without the relief provided by medication to treat the service-connected strain of the right hip with limitation of extension. In other words, the clinician should assess the existence and severity of what these symptoms would have been during the appeal period absent the ameliorative effects of medication. This clinician should also state whether the Veteran has at any time during the appeal period had the functional equivalent of ankylosis in the right hip. 2. Ask the Veteran to provide IRS tax returns for the periods during which she claims she was too disabled to work along with a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Inform the Veteran that if she does not have copies of her tax returns for the requested years, she may use the IRS form cited to above. 3. Readjudicate the claim for TDIU consistent with the resolution of the remanded claim for an increased rating for the right hip disability herein and, given the fact that the service-connected disabilities include unspecified depressive disorder with anxious distress, with consideration of the psychiatric reports received in February 2025 MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahlberg, Andrew 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.