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Board finds Veteran’s sciatica radiculopathy “mild”, fails to provide reasoning

Board finds Veteran’s sciatica radiculopathy “mild”, fails to provide reasoning

Summary

The Veteran served on active duty in the United States Navy from March 1974 to May 1974.  The VA Regional Office granted service connection for a back disability in August 2003.  VA also granted service connection for left sciatica radiculopathy in August 2004.  In December 2010, the Veteran sought increased disability ratings in excess of 40% and 10% respectively.

Board denies increased rating for sciatica radiculopathy and lumbar spine condition

The Board determined that the Veteran’s sciatica radiculopathy symptoms were no more than mild.  Therefore, a disability rating in excess of the currently assigned 10% was not warranted.  The Board then found that the Veteran’s lumbar spine disability picture was not exceptional or unusual.   Accordingly, it declined to refer that claim for consideration of entitlement to an extraschedular rating.  The Veteran appealed this decision to the Court of Appeals for Veterans Claims.

CCK appeals to Court

CCK argued that the Board failed to provide adequate reasons or bases for its determination that the Veteran’s radiculopathy was mild, as opposed to moderate or severe.  In addition, CCK argued that the Board failed to adequately consider favorable evidence.  Specifically, it did not consider the fact that the Veteran requires a walker to ambulate before concluding that his back disability picture was not exceptional or unusual.

The Court agrees with CCK

The Court agreed with CCK that the Board did not adequately explain its conclusion that the Veteran only suffered from mild impairment.  Rather, the Board simply listed the Veteran’s symptoms, and identified them as “predominantly” – but not wholly – sensory.  Furthermore, it relied on the examiner’s classification of the condition as mild to conclude that the Veteran was not entitled to a disability rating higher than 10%.  The Board provided no analysis of his symptoms of pain, numbness, diminished light touch sensation, and absent deep tendon reflexes.  Nor did it provide an explanation for its conclusion that the Veteran’s radiculopathy is mild despite these symptoms.

The Court also agreed that the Board’s extraschedular analysis was insufficient.  Specifically, the decision contained no explicit discussion of the severity of the Veteran’s symptoms.  Instead, the Board simply listed the Veteran’s symptoms and stated that the rating schedule adequatley contemplated them.  Additionally, the Court found that the Board’s earlier schedular analysis, which focused on the absence of ankylosis of the thoracolumbar spine, was irrelevant to the discussion of whether the back disability picture was so exceptional or unusual as to warrant referral for extraschedular consideration.

Therefore, the Court vacated the Board’s decision that denied an increased rating for left sciatic radiculopathy, and declined to refer the back disability for extraschedular consideration.  The Court thus remanded those issues for further proceedings consistent with the decision.

To read a copy of the Court’s decision, click here. 

Category: Court Wins

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