Citation Nr: 1749084	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  07-24 461	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity (RLE).

2.  Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity (LLE).



REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Jebby Rasputnis, Counsel


INTRODUCTION

The Veteran served on active duty from March 1968 to January 1970.  

This appeal was last before the Board of Veterans' Appeals (Board) in January 2017, on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston.  The Board denied an initial rating in excess of 20 percent for radiculopathy of the RLE and granted an initial 20 percent rating for radiculopathy of the LLE.  The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court).  Pursuant to a Joint Motion for Partial Remand (JMPR), the Court returned the appeal to the Board for another review of the Veteran's entitlement to an initial rating in excess of 20 percent for his radiculopathies of the bilateral lower extremities.


FINDING OF FACT

For the entire appeal period, radiculopathies of the bilateral lower extremities have been manifested by pain, sensory and motor changes, muscle weakness, and decreased reflexes, but not by marked muscle atrophy.


CONCLUSION OF LAW

The criteria for initial ratings of 40 percent for each of the radiculopathies of the bilateral lower extremities have been approximated.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that his bilateral lower radiculopathies, rated under Diagnostic Code 8520 for impairment of the sciatic nerve, are each more disabling than as reflected by a 20 percent rating.  Under Code 8520: a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is warranted when there is moderate incomplete paralysis; a 40 percent rating is warranted when there is moderately-severe incomplete paralysis.  A 60 percent rating is not warranted unless marked muscular atrophy accompanies severe incomplete paralysis.  The term "incomplete paralysis" indicates 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. When the involvement is wholly sensory, the rating should be for the mild, at most, the moderate degree.  38 C.F.R. § 4.124a.

Words such as "mild," "moderate" and "severe" are not defined in the Rating Schedule, but, in rating peripheral nerve injuries and their residuals, attention is given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances.  Since December 2004, medical evidence reflects that the Veteran has reported pain extending down his legs and has experienced decreased reflexes, motor activity, muscle strength, and sensation.  The Veteran's private treatment providers have observed paresthesias, decreased sensation in both feet, weakened reflexes, and pain.  VA examiners have observed loss of reflex at the bilateral ankles, motor weakness at the bilateral knees, hypoactive deep tendon reflexes at the knees, weakness of several muscles - the right extensor hallucis longus muscle, tibialis anterior, triceps surae, quadriceps femoris, and iliopsoas -, and decreased sensation to pin prick, light touch, and vibration.  The Veteran has also reported numbness and tingling, and some difficulty walking (with some foot drop), in addition to radiating pain.

Although the medical evidence does not reflect any evidence of marked muscle atrophy, it does indicate several symptoms of impairment that are more than wholly sensory in nature, to specifically include decreased motor function, impaired reflexes, and decreased muscle strength.  As a result, the criteria for 40 percent ratings for the bilateral lower extremities are approximated for the duration of the appeal period.  However, an extraschedular disability rating is not warranted as the Veteran's radiculopathies do not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).  Specifically, a comparison of the severity and symptomatology of the Veteran's radiculopathies with the established schedular criteria shows that his disability level is reasonably described; referral is not warranted.   See Thun v. Peake, 22 Vet. App. 111 (2008).

Pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced.  However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional impairment that has not been attributed to a specific, rated disability.  A 40 percent disability rating, but no more, is warranted for each of the Veteran's lower extremity radiculopathies.


ORDER

An initial 40 percent rating for radiculopathy of the left lower extremity is granted.

An initial 40 percent rating for radiculopathy of the right lower extremity is granted.




____________________________________________

Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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