Citation Nr: 0813862 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 04-21 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased evaluation for degenerative disc disease of the lumbar spine, currently evaluated as 20 percent disabling. 2. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kelli A. Kordich, Counsel INTRODUCTION The veteran served on active duty from June 1989 to September 1992 and over four and a half years of prior unverified service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which increased the veteran's evaluation for his degenerative disc disease to 20 percent effective December 16, 2002 and granted service connection for radiculopathy of the right lower extremity and assigned a 10 percent disability rating effective March 11, 2003. The appellant presented testimony at a Travel Board hearing chaired by the undersigned Veterans Law Judge in June 2006. A transcript of the hearing is associated with the veteran's claims folders. FINDINGS OF FACT 1. For the period prior to September 25, 2003, degenerative disc disease of the lumbar spine was not manifested by a severe limitation of lumbar motion; or an intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; or ankylosis of the lumbar spine; or fractured vertebra. 2. For the period since September 26, 2003, degenerative disc disease of the lumbar spine has not been manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 3. Radiculopathy of the right lower extremity has been manifested by not more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.71a, Diagnostic Codes 5289, 5292, 5293 (2003); 38 C.F.R. §§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.71a, Diagnostic Codes 5235 to 5243 (2007). 2. The criteria for an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.124a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background VA treatment records dated June 1998 to December 2002 showed treatment for low back pain. In March 1999, the veteran reported tingling and burning down the left leg intermittently. Motor and sensory examination of the left lower leg was noted as showing intact motor and sensory status. The veteran complained of back spasms, the examiner noted paraspinal spasms involving the lumbar region. The examiner diagnosed chronic lumbago with spasms. August 1999 reports show complaints of low back pain that radiated down to the toe as well as numbness and tingling in the toes. At an October 1999 VA fee basis examination, the veteran reported increased flare-ups of her low back disability. She used a TENS machine. She reported a sharp pain down her legs, especially on the left side. Upon examination, the veteran walked without any devices. Her gait was normal and could stand for 30 minutes to one hour before her feet got sore. She could walk one hour to one and a half before her feet hurt. The lumbar spine revealed no tenderness to palpation. Flexion was normal at 95 degrees, extension normal at 35 degrees, right and left lateral movement was noted as normal at 40 degrees, and right and left rotation at 35 degrees. X-rays of the lumbar spine showed no degenerative changes. A VA MRI report dated in December 2002 showed mild degenerative disc disease of L3-L4, a large central and right paracentral disc herniation with thecal root compression involving L4-L5, and advanced degenerative disc disease. At a March 2003 VA fee basis examination, the veteran reported she could not stand, walk, or bend at work and standing was limited and got worse after ten minutes. She had pain that radiated down her left and right knees and numbness in the feet and toes. There was pain in the arch of her feet and lower abdominal and pelvic areas. The veteran stated she had constant pain that flared up approximately three to four times per month and would last 9-12 days during the month. She indicated she had difficulty driving a car, shopping, and pushing a lawnmower, climbing stairs, and gardening. The examination showed the veteran's posture and gait to be normal. Examination of the lumbar spine revealed radiation of pain on movement. There was no current muscle spasm. There was tenderness at approximately T12. Straight leg raise was positive on the right at 45 degrees and negative on the left with signs of radiculopathy on the right subjectively with pain. There was persistent tingling and burning to the pelvis. Flexion was performed to 65 degrees with pain beginning at 45 degrees. Extension to 30 degrees with pain, right and left lateral flexion to 40 degrees, and right and left rotations to 35 degrees with pain. The examiner noted that the Deluca issue was pain. Range of motion was not limited by fatigue, weakness, lack of endurance or incoordination. There was no ankylosis. Neurological examination of the lower extremities was within normal limits. Motor function was normal; muscle power was 5/5. Sensation to touch and pin prick was normal. Reflexes were normal at 2+ bilaterally. The veteran was diagnosed with degenerative disc disease with radiculopathy. X-rays of the lumbar spine showed partial sacralization of the L5 vertebral body which was unchanged from prior examination and likely represented a congenital variant. Degenerative disease was noted at L4-L5 levels and calcified phleboliths were noted in the pelvis. At her June 2006 Travel Board hearing, the veteran testified that she had radiating pain down the legs. She stated she does exercises for her back condition and has had physical therapy. VA treatment records dated from 2003 to 2006 show treatment for the veteran's back disorder. The veteran described low back pain with radiation down the back of the legs, buttocks with tingling in the legs and feet. In February 2006, the veteran reported visiting the emergency room with lower back pain and doctors told her it was her fibroids. She reported lower back pain with radiation to the lower legs and constant numbness in the feet/toes. She denied weakness and incontinence. At an August 2007 VA examination, the veteran described current back pain as constant daily pain that could be characterized as a "fire" and also described as a dull pain. She reported that she did have radiation of the pain into her buttocks and down both legs. When it radiated down the right leg, it courses to the front of the leg. She reported that the pain would go to her feet where she had a "needles and pins" sensation and stated that it felt like she was walking on "needles and pins". She also reported in her left leg a "pulling or drawing up" sensation. She also reported muscle spasms. The veteran indicated she was not using any oral pain medications. She did use Capsaicin cream, which she stated did help some and also had a TENS unit, which helped. She reported that she did use a back brace and also a pillow for support in her car. She did not use any other assistive device. She did not report difficulties with basic ambulation/walking. She did report that she was employed as a facilities manager and the job involved prolonged standing and walking at short intervals. She indicated that she had lost time from work not only due to her back but due to other medical problems and estimated over the past two and a half years that she had lost 800 hours from work due to sick leave. The veteran indicated that she had not been hospitalized for her back pain, but had been to the local emergency room in May 2006 for the back pain and got a pain injection. The veteran denied flare-ups and denied incapacitating episodes during the past 12 month period. The examination noted the veteran ambulated slowly. She did not have tenderness to palpation. At the time of the examination, she did not have spasms. Forward flexion of the lumbar spine was 0 to 84 degrees with pain throughout motion. Extension was 0 to 40 degrees with pain throughout motion. Right lateral flexion was 0 to 46 degrees with pain in the upper shoulder area throughout motion. Left lateral was 0 to 40 degrees with pain in the upper shoulder area throughout motion. Right and left lateral rotation was 0 to 35 degrees with pain throughout motion in the upper neck and shoulder areas. Following three repetitions, the veteran had increased pain but no fatigue, weakness, lack of endurance, or incoordination. There was no additional limitation of motion with repetitions. The veteran had 5/5 strength in the bilateral lower extremity muscles. No muscle atrophy was noted. Reflexes were 2+ Achilles and patella bilaterally and down going plantar reflexes bilaterally. Sensory was intact to light touch and pin prick in the left lower extremity. In the right lower extremity, in a stocking glove distribution, the veteran had diminished light touch and pin prick sensation. Temperature sense was grossly intact in the right lower extremity. X-rays showed hypoplastic ribs bilaterally at T12 and left sided pseudoarthrosis at the L5 level with the adjacent sacrum. There was normal alignment of the lumbar spine with loss of normal lumbar lordosis. There was degenerative disc disease with disc space narrowing at the 4-5 level with associated hypertrophic spurring endplate sclerosis and vacuum disc formation. Vertebral body height was maintained. The pedicles and SI joints appeared to be intact. Scattered calcified phleboliths were noted in the pelvis. II. Increased evaluations Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 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 above all, coordination of rating with impairment of function will be expected in all cases. 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 or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A. Increased evaluation for degenerative disc disease of the lumbar spine By a rating decision dated April 2003, the RO increased the veteran's lumbar spine disability to 20 percent effective December 16, 2002. The 20 percent disability rating remains in effect to the present time. In this case, the Board is not concerned with service connection, as that has already been established. Rather, it is the level of disability that is of concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Still, each disability must be viewed in relation to its history, so examination reports and treatment records dating back at least to the date of the claim are considered. 38 C.F.R. § 4.1. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2007). When evaluating a loss of a range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the United States Court of Appeals for Veterans Claims (Court) explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 206. While this appeal was pending the applicable rating criteria for spinal disabilities under 38 C.F.R. § 4.71a, were revised effective September 26, 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003). The veteran was notified of the change in criteria by an April 2004 statement of the case and a December 2007 supplemental statement of the case. The timing of this change requires the Board to first consider the claim under the old regulations for any period prior to the effective date of the amended diagnostic codes. Thereafter, the Board must analyze the evidence dated after the effective date of the new regulations and consider whether an increased rating is warranted under the new criteria. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Old Regulations. At all times during the course of the appeal under 38 C.F.R. § 4.71a, Under Diagnostic Code 5010 (2007), traumatic arthritis is rated as degenerative arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007), degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Under 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002) a moderate limitation of motion warranted a 20 percent disability rating. A severe limitation of lumbar motion warranted a 40 percent disability rating. Effective September 23, 2002, intervertebral disc syndrome (preoperatively or postoperatively) will be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. With incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months warrants a 40 percent rating. A 20 percent evaluation is warranted where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Note (1): For purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. Note (3): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. New Regulations (effective on and after September 26, 2003). As noted above under 38 C.F.R. § 4.71a (2007), a lumbar disorder such as that presented in this case is evaluated under the general formula for back disorders. The rating criteria are controlling regardless whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. In this respect, a 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Id. Note (4): Round each range of motion measurement to the nearest five degrees. Id. When the veteran's service connected degenerative disc disease of the lumbar spine is evaluated under the old rating criteria, and in light of all pertinent medical records, including reported degrees of lumbar motion, and effects of pain on use (38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995), it is found that the disorder is productive of no more than moderate limitation of lumbar motion, warranting a 20 percent evaluation under Diagnostic Code 5292. The March 2003 VA examination showed flexion to 65 degrees, extension to 30 degrees, right and left lateral flexion to 40 degrees, and right and left rotations to 35 degrees. There was no medical evidence of muscle spasm and no demonstrable vertebral deformity. In addition, the examiner indicated that no weakness was detected with clinical examination. X-ray showed partial sacralization of the L5 vertebral body which was noted as likely a congenital variant. Degenerative disease was noted at L4-L5 levels. From September 2002, the disability may be rated based on incapacitating episodes (under the revised Code 5293, then from September 26, 2003 under Code 5243). The March 2003 examination showed no medical evidence supporting a rating greater than 20 percent under Diagnostic Code 5293. The medical evidence did not show intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Hence, there is no basis for rating based on incapacitating episodes. The symptoms which are attributable to the veteran's service- connected lumbar disability are not shown at any time to be of such a nature or severity or to result in such functional limitations as to warrant a schedular evaluation in excess of the assigned 20 percent rating under the new criteria. The August 2007 VA examination showed the veteran ambulated slowly. She did not use assistive devices. There were no palpable spasm and no tenderness. Forward flexion was to 84 degrees, extension to 40 degrees, right lateral flexion was to 46 degrees, and left lateral flexion was to 40 degrees. Right and left lateral rotation was to 35 degrees. The examiner noted pain throughout range of motion testing. Following three repetitions, the veteran had increased pain but no fatigue, weakness, lack of endurance, or incoordination. There was no additional limitation of motion with repetitions. When the service connected degenerative disc disease of the lumbar spine is evaluated under the new rating criteria, no more than a 20 percent rating is warranted, as the medical evidence does not show that the veteran had forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. In light of the foregoing, the clinical findings reported do not warrant an increased rating under any applicable criteria. Hence, it must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Radiculopathy of the right lower extremity By a rating decision dated April 2003, the RO separately rated the veteran's service connected radiculopathy of the right lower extremity and assigned a 10 percent disability rating effective March 11, 2003. The 10 percent disability rating remains in effect to the present time. The veteran seeks an initial evaluation in excess of the currently assigned for the service connected radiculopathy of the right lower extremity. This appeal arises from an initial grant of service connection, which assigned the initial disability evaluation. Therefore, it is not the present level of disability that is of primary importance. Instead, the entire period in question must be considered to ensure that consideration is given to the possibility of staged ratings, that is, separate ratings must be assigned for separate periods of time based on the facts found. The Board has considered whether "staged" ratings are appropriate. See Fenderson v. West, 12 Vet. App. at 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The record, however, does not support assigning different percentage disability ratings during the period in question. Under 38 C.F.R., 4.71a, Diagnostic Code 8520, a veteran is entitled to a 10 percent rating if his incomplete paralysis of the sciatic nerve is mild; and 20 percent if it is moderate. Records have not confirmed objective evidence of nerve impairment related to the veteran's radiculopathy such that a greater than 10 percent rating is warranted for associated neurological abnormalities in the right lower extremity. The August 2007 VA examination showed 5/5 strength in the bilateral lower extremity muscles. No muscle atrophy was noted. Reflexes were 2+ Achilles and patella bilaterally and down going plantar reflexes bilaterally. Sensory was intact to light touch and pin prick in the left lower extremity. In the right lower extremity, in a stocking glove distribution, the veteran had diminished light touch and pin prick sensation. Temperature sense was grossly intact in the right lower extremity. Although the veteran has reported on-going pain with radiation to her legs, the evidence does not show moderate incomplete paralysis of the sciatic nerve, a defining criteria of a 20 percent rating for radiculopathy. While the veteran complained of pain and numbness going down the legs, there is no electrodiagnostic evidence of sensory or motor peripheral neuropathy or L/S radiculopathy affecting the left lower extremity. The August 2007 VA examination noted sensory was intact to light touch and pin prick in the left lower extremity. Since the veteran has not been diagnosed with associated neurological conditions in relation to the left lower extremity, a separate evaluation is not warranted. The Board thus concludes that the preponderance of the evidence is against a disability evaluation in excess of 10 percent for the veteran's radiculopathy of the right lower extremity. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, because the preponderance of the evidence is against the veteran's claim, the doctrine is not for application, 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54, and the appeal is denied. III. Duties to notify and assist Before addressing the merits of the veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. In addition, the VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In addition, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In February 2003, March 2006, and September 2006 letters the RO sent the veteran the required notice. The letter specifically informed her of the type of evidence needed to support the claims, who was responsible for obtaining relevant evidence, where to send the evidence, and what she should do if she had questions or needed assistance. She was told to submit all pertinent evidence she had in her possession pertaining to the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The timing notification requirements listed in 38 C.F.R. § 3.159 should include all downstream issues of the claim. (i.e., the initial-disability-rating and effective-date elements of a service-connection claim). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, although the veteran was not specifically provided the notice required by Dingess, until March 2006, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In the instance in which the Board has assigned a higher disability evaluation, the agency of original jurisdiction will be responsible for addressing any notice defect with respect to the effective date elements when effectuating the award. With respect to the claims that have been denied, no disability ratings or effective dates will be assigned, so there can be no possibility of any prejudice to the veteran in not notifying her of the evidence pertinent to these elements. To the extent that the veteran should have been provided the notice required by Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concerning the claim for an increased disability evaluation not generated from an initial grant of service connection, the Board concludes that she was not prejudiced in this instance, as she was given specific notice concerning the rating criteria for each disability at issue in both the rating decision, statement of the case, and supplemental statement of the case. Consequently, she had actual notice of the specific rating criteria for each disability, and why a higher rating had not been assigned, as well as an opportunity to present evidence and argument to support a higher rating. In this case the veteran received the required notice prior to the adverse rating action that is the subject of this appeal. With respect to VA's duty to assist the appellant, the RO has obtained the veteran's VA treatment records and VA examinations. The veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. The veteran testified at a June 2006 Travel Board. Significantly, neither the veteran nor her representative has identified, and the record does not otherwise indicate, any additional pertinent records. In sum, the Board is satisfied that the originating agency properly processed the veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs