PARALYSIS OF SCIATIC NERVE

ARDIE A. BLAND · 2026 · Case ID: A26040664

MIXED

Summary

The Veteran served from June 1978 to May 1980. This case concerns the Veteran's bilateral lower extremity radiculopathy, specifically the sciatic nerve in the left leg and the femoral nerve in the right leg. The Veteran appealed the reduction of his disability ratings for these conditions from 20 percent to 10 percent, effective May 1, 2021. The Board found the reduction improper, citing a lack of actual improvement in the Veteran's condition. The reduction was based on a single September 2020 VA examination, which the Board deemed inadequate because it did not reflect an actual change in disability or improvement in the Veteran's ability to function. The Veteran's symptoms, described as mild in both March and September 2020 examinations, were consistent, and his testimony about needing a cane for balance did not meet the criteria for severe impairment or paralysis. Consequently, the Board reinstated the original 20 percent ratings for both left and right lower extremity radiculopathy. The Veteran also sought earlier effective dates for these conditions, but the Board denied these claims, finding that the evidence did not support an earlier date than February 26, 2020, which was the date of the Veteran's fully developed claim for service connection and increased rating. The Board also denied claims for higher ratings, finding the evidence did not meet the criteria for moderate or severe paralysis or marked muscular atrophy.

Rationale

Reduction improper due to lack of actual improvement; Single VA exam inadequate; Findings consistent with prior examinations

Special Benefit

EARLIER EFFECTIVE DATE

Diagnostic Code

8520

Docket No.

210303-143514

Full Decision Text

Citation Nr: A26040664
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 210303-143514
DATE: April 30, 2026

ORDER

The reduction of the disability rating for the Veteran's left lower extremity sciatic nerve radiculopathy from 20 to 10 percent as of May 1, 2021, was improper and the 20 percent rating is restored.

The reduction of the disability rating for the Veteran's right lower extremity femoral nerve radiculopathy from 20 to 10 percent as of May 1, 2021, was improper and the 20 percent rating is restored.

An effective date prior to February 26, 2020, for service connection for left lower extremity sciatic nerve radiculopathy is denied.

An effective date prior to February 26, 2020, for the 20 percent rating assigned to the Veteran's right lower extremity femoral nerve radiculopathy is denied.

A rating higher than 20 percent for left lower extremity sciatic nerve radiculopathy is denied.

A rating higher than 20 percent for right lower extremity femoral nerve radiculopathy is denied.

FINDINGS OF FACT

1. At the time of the 2020 reduction, the Veteran's bilateral lower extremity radiculopathy did not show actual improvement.

2. Prior to VA's February 26, 2020, receipt of the Veteran's claim for service connection, there were no pending requests for service connection for left lower extremity radiculopathy that were unadjudicated.

3. VA received the Veteran's claim for a higher evaluation for a right lower extremity radiculopathy on February 26, 2020; no communication prior was received that could be construed as an informal or formal claim for a higher evaluation or which made it factually ascertainable that the Veteran's right lower extremity radiculopathy had increased in severity.

4. The persuasive evidence of record is against finding that the Veteran's left lower extremity radiculopathy causes complete paralysis, or could be characterized as moderately severe, or has marked muscular atrophy.

5. The persuasive evidence of record is against finding that the Veteran's right lower extremity femoral nerve radiculopathy causes complete paralysis, or could be characterized as severe.

CONCLUSIONS OF LAW

1. The reduction from 20 to 10 percent for left lower extremity sciatic nerve radiculopathy effective May 1, 2021, was improper and the 20 percent rating is restored. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.10, 4.13, 4.104, Diagnostic Code (DC) 8520.

2. The reduction from 20 to 10 percent for right lower extremity femoral nerve radiculopathy effective May 1, 2021, was improper and the 20 percent rating is restored. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.10, 4.13, 4.104, DC 8526.

3. The criteria for an effective date prior to February 26, 2020, for the award of service connection for left lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. § 5107, 5110; 38 C.F.R. § 3.114, 3.155, 3.156, 3.400.

4. The criteria for an effective date prior to February 26, 2020, for a 20 percent rating for right lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

5. The criteria for a rating higher than 20 percent for left lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 8520.

6. The criteria for a rating higher than 20 percent for right lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3
; 38 C.F.R. § 3.400.

5. The criteria for a rating higher than 20 percent for left lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 8520.

6. The criteria for a rating higher than 20 percent for right lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 8526.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1978 to May 1980.

In the March 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on September 10, 2024.

Therefore, the Board may only consider the evidence of record at the time of the May 2020 and February 2021 agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran [or representative] at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decisions on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 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 claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

RATING REDUCTION

There are specific notice requirements which apply to a reduction in rating. The procedural safeguards afforded to the Veteran in a reduction case are set forth under 38 C.F.R. § 3.105(e) and must be followed by VA before issuing a final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). 38 C.F.R. § 3.105(e) requires: (1) that the Veteran be sent a proposed rating decision setting forth all material facts and reasons for the rating reduction; and (2) that the Veteran be given 60 days to present additional evidence demonstrating that the rating should be continued at its present level. These specific notice requirements take precedence over the more general notice requirements found in the VCAA. See Zimick v. West, 11 Vet. App. 45, 51 (1998) ("a more specific statute will be given precedence over a more general one...."); see also Kowalski v. Nicholson, 19 Vet. App. 171, 176-77 (2005).

However, the provisions of 38 C.F.R. § 3.105(e) only apply if a rating reduction would result in a reduction or discontinuance of the compensation payments being made. In other words, if a rating reduction does not result in a reduction to the veteran's combined rating, and thus no change in monthly compensation, the issuance of a rating decision proposing the reduction and providing a 60-day notice of such reduction is not required. See Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007).

Congress has provided that a Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When VA reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999).

Prior to reducing a disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 413, 420 (1993). Section 4.1 provides: "It is... essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history." Similarly, 38 C.F.R. § 4.2 provides: "It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." Thus, "[t]hese provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the Veteran's disability." Brown, 5 Vet. App. 413, 420 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

Moreover, 38 C.F.R. § 4.13 provides: "When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms." Based on the regulations quoted above, VA is required in any rating-reduction case 'to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Brown, 5 Vet. App. at 421; Schafrath, supra. Furthermore, 38 C.F.R. § 4.10 provides that "[t]he basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment," and 38 C.F.R. § 4.2 directs that "[e]ach disability must be considered from the point of view of the veteran working or seeking work...Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work."

In certain rating reduction cases, VA benefits recipients are to be afforded greater protections. 38 C.F.R. § 3.344. That section provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344 specify that ratings on account of diseases subject to temporary or episodic improvement, such as, psychiatric disorders will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. The regulations provide further that these considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating.

Bilateral Lower Extremity Radiculopathy

Here, the Veteran's left and right lower extremity radiculopathy was assigned a 20 percent rating in a May 2020 rating decision. A September 2020 rating decision proposed a reduction of the ratings and the February 2021 rating decision on appeal effected the reductions as of May 2021. Based on the foregoing, the Board finds that the procedural requirements of 38 C.F.R. § 3.105(e) have been met and as the Veteran's lower extremity radiculopathy ratings were not in effect for more than 5 years, the additional requirements of § 3.344 are inapplicable. However, in any reduction case, regardless of how long the rating has been in effect, the RO has an obligation to ensure that the reduction was based upon a review of the entire history of the Veteran's disability; that there has been an actual change in the condition and, that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421.

In this matter, the Board does not find that the Veteran's bilateral lower extremity radiculopathy showed actual improvement. The rating reduction was based on a single VA examination done in September 2020. That examination indicated the Veteran reported Veteran reports sharp shooting pain with numbness, burning and tingling that goes down to both feet and all toes which had increased in severity. The September 2020 examination found the Veteran had symptoms of constant pain, paresthesias/dysesthesias, and numbness. The examiner opined that the Veteran's bilateral lower extremity radiculopathy would preclude the Veteran from all employment other than sedentary employment. Furthermore, these findings are consistent with the Veteran's prior examination conducted in March 2020 which was the basis for the original grant of the Veteran's 20 percent ratings. As such, the Board finds the single September 2020 VA examination inadequate to establish that the Veteran's left or right lower extremity radiculopathy had actual change which reflected improvement. As such, the Board finds that the rating reductions were improper and the Veteran's 20 percent ratings for his left and right lower extremity radiculopathy are reinstated.

Earlier Effective Dates

Service Connection

Generally, except as otherwise provided, the effective date of an award of compensation based on an original claim will be the day following separation from active service or the date of entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i).

Left Lower Extremity Radiculopathy

The Veteran has sought an earlier effective date for the grant of service connection for his left lower extremity sciatic nerve radiculopathy. The May 2020 rating decision on appeal assigned a February 26, 2020, effective date for the grant of service connection for the Veteran's left lower extremity sciatic nerve radiculopathy as that was the date upon which VA received the Veteran's fully developed claim form (FDC).

The Veteran testified in his hearing that he was unsure of when he filed his claim for service connection, but that he had been experiencing symptoms of left lower extremity radiculopathy since his active duty service.

Based on the foregoing, the Board is unable to grant an effective date prior to February 26, 2020, for the grant of service connection for the Veteran's left lower extremity sciatic nerve radiculopathy. Here, the record shows that the Veteran sought a higher rating for his right lower extremity radiculopathy on February 26, 2020, and a March 2020 VA examination found that the Veteran was also experiencing left lower extremity radiculopathy related to his service connected lumbar spine disability. As such, an effective date prior to February 26, 2020, is inapplicable. The Veteran's entitlement to service connection is the later of the dates between when he experienced symptoms and when he filed a claim. Here, the later of those dates is February 26, 2020.

Review of the record shows that the Veteran sought service connection for his low back pain in February 2018, and a November 2018 VA examination found the Veteran had associated right lower extremity radiculopathy. His left lower extremity was not found to have any radiculopathy. Thus,
found that the Veteran was also experiencing left lower extremity radiculopathy related to his service connected lumbar spine disability. As such, an effective date prior to February 26, 2020, is inapplicable. The Veteran's entitlement to service connection is the later of the dates between when he experienced symptoms and when he filed a claim. Here, the later of those dates is February 26, 2020.

Review of the record shows that the Veteran sought service connection for his low back pain in February 2018, and a November 2018 VA examination found the Veteran had associated right lower extremity radiculopathy. His left lower extremity was not found to have any radiculopathy. Thus, a secondary service claim for left lower extremity radiculopathy was not raised by the record prior to the Veteran's February 2020 FDC. Additionally, the Board is aware that the Veteran did file a claim for left leg cramps in February 2019; however, that claim was denied in a May 2019 rating decision which the Veteran did not appeal. Thus, that rating decision became final and service connection back to the February 2019 claim is precluded.

As such, the persuasive evidence of record is against an effective date prior to February 26, 2020, for the grant of service connection for left lower extremity radiculopathy. Accordingly, as the persuasive evidence of record is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Increased Rating

The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C. § 5110 (a) and (b)(2), and 38 C.F.R. § 3.400 (o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1).

An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." 38 U.S.C. § 5110 (b)(2). See 38 C.F.R. § 3.400 (o)(2). The phrase "otherwise, date of receipt of claim" applies only if a factually ascertainable increase in disability occurred within one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125 (1997). Moreover, the term "increase" as used in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997).

Right Lower Extremity Radiculopathy

The record shows that the Veteran's right lower extremity femoral nerve radiculopathy was assigned a 20 percent rating as of his February 26, 2020, increased rating claim.

After review of the record, the Board does not find that any evidence was received by VA prior to the Veteran's February 26, 2020, increased rating claim that would support an effective date prior to February 26, 2020. There are no records of evidence that show the Veteran sought to file or did file an increased rating claim regarding his right lower extremity radiculopathy prior to February 26, 2020. Additionally, there are no records of evidence received prior to the February 2020 FDC that show any treatment or evaluation of the Veteran's right lower extremity radiculopathy which would suffice to show an increase in the severity of that disability. Thus, there is no factually ascertainable increase in the Veteran's disability within the one-year period preceding the date VA received the Veteran's claim.

As such, the persuasive evidence of record is against the Veteran's claim for
would support an effective date prior to February 26, 2020. There are no records of evidence that show the Veteran sought to file or did file an increased rating claim regarding his right lower extremity radiculopathy prior to February 26, 2020. Additionally, there are no records of evidence received prior to the February 2020 FDC that show any treatment or evaluation of the Veteran's right lower extremity radiculopathy which would suffice to show an increase in the severity of that disability. Thus, there is no factually ascertainable increase in the Veteran's disability within the one-year period preceding the date VA received the Veteran's claim.

As such, the persuasive evidence of record is against the Veteran's claim for an earlier effective date for the 20 percent rating for his right lower extremity radiculopathy. As the persuasive evidence of record is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Lower Extremity Radiculopathy

As discussed above, the Veteran's left lower extremity radiculopathy has been assigned a 20 percent rating pursuant to DC 8520.

DC 8520 provides for higher ratings as follows:

Moderately severe incomplete paralysis is assigned a 40 percent rating and severe incomplete paralysis with marked muscular atrophy is assigned a 60 percent rating. Complete paralysis, wherein the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is assigned an 80 percent rating.

The Veteran's right lower extremity radiculopathy is assigned a 20 percent rating pursuant to DC 8526. That code assigns higher ratings as follows:

Severe incomplete paralysis is assigned a 30 percent rating and complete paralysis, which includes paralysis of the quadriceps extensor muscles is assigned a 40 percent rating.

The rating criteria define the term "incomplete paralysis," with this and other peripheral nerve injuries, as a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.

Descriptive terms such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. In the absence of an express definition, words are given their ordinary meaning. Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015) (citing Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003)).

The ordinary meaning of "moderate" is "average in amount, intensity, quality, or degree." Gallagher v. Wilkie, No. 19-1855, 2020 U.S. App. Claims LEXIS 1889 (2020) (quoting New Oxford American Dictionary 1124 (3d ed. 2010).

The ordinary meaning of "severe" is "very great [or] intense," or "of a great degree." Id. (quoting, respectively, the New Oxford American Dictionary 1599 (3d ed. 2010) and Merriam-Webster Dictionary online (internal citation omitted)).

During the course of the appeal, the Veteran underwent two VA examinations regarding the severity of his left lower extremity radiculopathy.

In his March 2020 VA examination, he reported shooting pain in his bilateral lower extremities. He stated he had numbness, tingling, burning and sharp shooting pain extends down to his feet and toes. On examination, he had no constant pain and mild intermittent pain, paresthesias and/or dysesthesias, and numbness. He had decreased sensation in his lower legs and foot/toes. The examiner found that the Veteran's condition was mild. In his September 2020 VA examination, the Veteran reported sharp shooting pain with numbness, burning and tingling that goes down to both feet and all toes. On examination, he was found to have mild constant pain, no intermittent pain, and mild paresthesias and/or dysesthesias and numbness. He had decreased sensation in his lower legs and foot/toes. The examiner again found that the Veteran's condition was mild.

In his hearing, the Veteran testified that his radiculopathy affected his balance and that he require use of a cane.

After review of the foregoing, the Board finds that the persuasive evidence of record is against a higher ratings for the Veteran's left or right lower extremity radiculopathies. At the outset, the Board finds that there is no evidence which establishes that the Veteran had complete paralysis of either his left sciatic nerve or his right femoral nerve such to warrant ratings under those criteria. Additionally, there is no evidence of record which indicates that the Veteran's left lower extremity radiculopathy met the criteria to be considered severe - as there is no evidence that the Veteran had muscular atrophy. Furthermore, at no time were the Veteran's documented symptoms reported to be more than mild in either of his examinations. He was not found to have any symptoms which were reported to be severe or of great or intense degree. His hearing testimony also did not establish such severity of symptoms. As such, the Board cannot find that the evidence of record supports higher ratings for his bilateral lower extremity radiculopathy.

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In so finding, the Board has considered the Veteran's statements. The Board finds that though the Veteran is competent to report observable symptoms he experienced through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Layno v. Brown, 6 Vet. App. 465 (1994). The identification of a nerve disability and the determination of the severity of that disability requires medical expertise that the Veteran has not shown he possesses. The medical findings, as provided in the examination reports, directly address the criteria under which his disabilities are rated. The Board finds that evidence is the most persuasive and outweighs lay statements in support of his claims for a higher rating.

As such, the Board finds that the persuasive evidence of record is against the Veteran's claims for higher ratings. Accordingly, as the persuasive evidence of record is against the claims, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Ardie A. Bland

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A.P.

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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