Citation Nr: 1007118 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 05-28 320A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for a neurological manifestation of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to February 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Winston-Salem, North Carolina Department of Veterans' Affairs (VA) Regional Office (RO), wherein the RO granted service connection for a neurological manifestation of the right lower extremity and assigned a 10 percent disability rating, effective May 14, 2003. This case was previously remanded by the Board in April 2008 for further development. As noted by the Board in April 2008, although the Veteran initially requested a hearing, he withdrew this request by a February 2007 lay statement. In addition, the April 2008 Board remand noted that the Veteran raised the issue for service connection for neurological manifestation, left lower extremity, to include as secondary to the service-connected disabilities of lumbosacral sprain, spondylolysis and spondylolisthesis of L5-S1 and degenerative disc disease. As such, the Board referred this issue back to the RO. By a November 2009 Supplemental Statement of the Case (SSOC), the Veteran was assigned a 20 percent disability rating for his neurological manifestation of the right lower extremity. FINDING OF FACT The Veteran's neurological manifestation of the right lower extremity is productive of moderate incomplete paralysis of the sciatic nerve. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 20 percent for a neurological manifestation of the right lower extremity, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2009). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2009). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119- 20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Prior to the initial adjudication of the Veteran's claim for service connection in the February 2005 rating decision, he was provided notice of the VCAA in May 2003, June 2003, August 2003, October 2003, September 2004 and November 2004. Additional VCAA letters were sent in August 2006, April 2008 and March 2009. The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. Thereafter, the Veteran received additional notice in March 2006, August 2006, April 2008, March 2009 and November 2009, pertaining to the downstream disability rating and effective date elements of his claim, and was furnished a Statement of the Case in with subsequent re-adjudication in a November 2009 Supplemental Statement of the Case. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. It is well to observe that service connection for a neurological manifestation of the right lower extremity has been established and an initial rating for this condition has been assigned. Thus, the Veteran has been awarded the benefit sought, and such claim has been substantiated. See Dingess v. Nicholson, 19 Vet. App. at 490-491. As such, 38 U.S.C.A. § 5103(a) notice is no longer required as to this matter, because the purpose for which such notice was intended to serve has been fulfilled. Id. Also, it is of controlling significance that, after awarding the Veteran service connection for a neurological manifestation of the right lower extremity and assigning an initial disability rating for this condition, he filed a notice of disagreement contesting the initial rating determination. See 38 C.F.R. § 3.159(b) (2009) (amended to add subparagraph (3), which provides VA has no duty to provide section 5103 notice upon receipt of a notice of disagreement). The RO furnished the Veteran a Statement of the Case that addressed the initial rating assigned for his a neurological manifestation of the right lower extremity, included notice of the criteria for a higher rating for that condition, and provided the Veteran with further opportunity to identify and submit additional information and/or argument, which the Veteran has done by perfecting his appeal. See 38 U.S.C.A. §§ 5103A, 5104(a), 7105 (West 2002). Under these circumstances, VA fulfilled its obligation to advise and assist the Veteran throughout the remainder of the administrative appeals process, and similarly accorded the Veteran a fair opportunity to prosecute the appeal. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim(s) in this Board decision. Rather, remanding this case back to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes private medical records, VA outpatient treatment reports, VA examinations, Social Security Administration (SSA) records and statements from the Veteran and his representative. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2009). Pertinent Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2009). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When, as here, the Veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v, West, 13 Vet. App. 31, 35 (1999). When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2009). The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). However, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found - this practice is known as "staged ratings." See id. at 126. The Veteran's neurological manifestation of the right lower extremity is currently rated under Diagnostic Code 8520 which provides ratings for paralysis of the sciatic nerve. Diagnostic Code 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The Board notes that words such as "slight," "moderate", and "severe" are not defined in the Rating 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. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. Analysis The Veteran contends that his current neurological manifestation of the right lower extremity warrants a higher initial disability rating than that which is presently assigned. VA outpatient treatment reports reflect that, in January 2002, the Veteran sought treatment for his back pain. At this time, a neurological evaluation revealed dull pain in the lower back in supine position, straight leg raising limited by pain by 20 percent on the right, tightness in the right hip and numbness in the L5-S1 locations. The Veteran was diagnosed with low back pain with radiculopathy. In February 2002 the Veteran was treated for complaints of back pain which radiated to both lower extremities and a pinched nerve in the lower back. Subsequent VA outpatient treatment reports, through August 2005, reflect that the Veteran was treated for complaints of low back pain and right knee pain due to osteoarthritis and were absent of any further complaints or treatment of the right lower extremity. In a February 2002 private medical record, the Veteran reported pain, burning and weakness in the bilateral legs. A physical examination of the lower extremities reflected negative straight leg raising bilaterally, no motor or sensory deficits and good distal pulses. An August 2002 private medical report reflects that the Veteran complained of numbness, pain and quivering in the lower extremities and used a nonprescribed walking stick when outside of the house. He also reported that his right knee had given out and he had fallen four times in the last six months. The Veteran characterized pain in the right knee as an eight out of 10 on a scale from one to 10, with 10 being the worst, with pain increasing from being in one position and decreasing with heat and ice. He had difficulty with squatting and climbing stairs. A neurological examination revealed mildly decreased sensation in the right lower extremity along the L5 region, deep tendon reflexes were 1/4 bilaterally, a mild stiff gait that was otherwise steady without assistance, positive straight leg raise on the right. The Veteran reported limited sitting to 40 minutes depending on his back, staining to two hours, walking for 30 minutes and was able to drive and travel for an hour and a half to two hours. He was diagnosed with back pain with osteoarthritis, degenerative disc disease and pinched nerve. In an October 2002 private medical record, a physical examination of the lower extremities reflected negative straight leg raising bilaterally and the Veteran was found to be intact neurologically, neurovascularly and tendonwise. A February 2004 decision by the SSA determined that the Veteran's severe included low back and right knee pain with limited range of motion and he was granted a fully favorable decision with respect to SSA disability insurance benefits. In an October 2004 QTC examination, the Veteran reported that due to his spine condition he has pain which travels to both legs with the right being worse than the left. The pain was characterized as burning, aching, sharp, sticking and cramping and was an eight out of 10 on a scale from one to 10, with 10 being the worst. The Veteran reported the pain was relieved by rest and medication. The Veteran also reported that his back pain was accompanied by burning in the back and legs and numbness and tingling in the legs. His functional impairment was noted as the inability to stand or walk normally and the inability to bend, stoop, twist or sit without pain. A physical examination revealed that the Veteran had an abnormal posture and abnormal gait, characterized as antalgic favoring the right side and aided by a cane. Negative strait leg raising was noted on the right. A neurological evaluation of the lower extremities reflects abnormal motor function with strength of 4/5 in extension and flexion in the toes, feet and knees. Sensory function was abnormal with findings of decreased, although not absent, response to light touch in the right lower leg along the L5 and S1 dermatomes. The right lower extremity revealed a knee jerk and ankle jerk of 1+. The Veteran was diagnosed with L5 and S1 radiculopathy and the examiner noted the development of progressive degenerative changes in the spine. In a December 2004 QTC examination, the Veteran reported suffering from pinched nerves and numbness in the legs with twitching of the legs at night, causing restlessness. A physical examination revealed that the Veteran had an abnormal gait, he walked with a cane and had a limp. A neurological evaluation was found to be basically normal in the lower extremities with normal motor and sensory function. In an October 2009 VA examination, the Veteran reported that he had a history of numbness, paresthesias, leg or foot weakness, falls, decreased motion, stiffness, weakness, spasms and pain. Pain was reportedly located in the lumbar spine which radiated down the right buttocks and right leg. This pain was characterized as being sharp, radiating and burning in nature, moderate in severity and occurred daily, lasting for three to seven days. Flare-ups of the Veteran's spinal condition were reportedly severe, occurred every one to two months, lasted three to seven days, were precipitated by prolonged sitting or twisting and were alleviated by bed rest or medication (NSAIDS, muscle relaxer or narcotic). The Veteran's impression of the extent of additional limitation of motion and functional impairment during a flare-up was reported as incapacitation, although the Veteran also reported having no incapacitating episodes of spine disease. The examiner noted the Veteran used a cane, was able to walk 1/4 of a mile and he reported that walking was limited by "burning neuritic lumbar pain and muscle spasms in the low back and buttocks." A physical examination reflected a normal posture and gait. A detailed motor examination reflected findings of 5/5 on the right for hip flexion and extension, knee flexion and extension, ankle dorsiflexion and plantar flexion, and great toe extension with normal muscle tone and no muscle atrophy. A detailed sensory examination of the right lower extremity revealed 1/2 with vibration, pin prick and position sense and 0/2 with light touch. Details of the location of abnormal sensation on the right was noted as a decreased light touch, pin prick and vibration in circumferential stocking distribution on the right leg from the mid calf to the toes which did not fit any known dermatome. The examiner noted the Veteran had a normal position sense. Reflexes on the right revealed knee jerk was +2 (normal), ankle jerk was +1 (hypoactive), and plantar flexion was normal. Reflexes were noted as abnormal as there was an absent patellar reflex bilaterally. A positive Lasegue's sign was noted on the right (indicating lumbar root or sciatic nerve irritation in which dorsiflexion of the ankle of an individual lying supine with the hip flexed causes pain or muscle spasm in the posterior thigh). The Veteran reported that he was unemployed for the last one to two years as he was unable to do the physical requirements of his job due to his lumbar spine pain. The Veteran was diagnosed with peripheral neuropathy associated with radiculopathy of the right leg. The Veteran reported that this condition had a moderate effect on chores, shopping, exercise and recreation, with mild effects on bathing, dressing, toileting, no effect on sports and a severe effect on traveling. After a careful review of the record, the Board finds that the Veteran's neurological manifestation of the right lower extremity does not warrant an initial evaluation in excess of 20 percent at any time since the effective date of service connection on May 14, 2003. The Board has based its conclusions on the medical evidence outlined above, which shows symptoms productive of no more than moderate incomplete paralysis of the sciatic nerve in the right lower extremity, which includes findings of: pain, straight leg raising limited by pain, negative straight leg raising, mildly decreased sensation, positive straight leg raising on the right in August 2002, abnormal posture, abnormal antalgic gait favoring the right side and aided by a cane, walking with a limp, findings of normal motor and sensory function progressing to findings of abnormal motor and sensory function, abnormal reflexes and positive Lasegue's sign. Finally, the Board notes that the Veteran reported that the neurological manifestation in the right lower extremity had mild to moderate effects on his activities of daily living, with the one exception that this condition had a severe effect only on his travel. As such, the Board finds that the Veteran's symptoms of a neurological manifestation of the right lower extremity more nearly approximate the criteria for a 20 percent rating under Diagnostic Code 8520, for moderate incomplete paralysis. In the absence of findings which indicate that the neurological manifestation is productive of moderately severe incomplete paralysis, there is no schedular basis for an initial disability rating in excess of 20 percent. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. All things considered, the record as a whole does not show persistent symptoms that equal or more nearly approximate the criteria for an evaluation in excess of 20 percent at any time since the effective date of service connection for a neurological manifestation of the right lower extremity on May 14, 2003. See Fenderson, 12 Vet. App. at 125-26. That is to say, the Veteran's disability has been no more than 20 percent disabling since the effective date of his award, so his rating cannot be "staged" because this represents his greatest level of functional impairment attributable to this condition. In summary, for the reasons and bases expressed above, the Board concludes that an initial disability rating in excess of 20 percent for a neurological manifestation of the right lower extremity is not warranted at any time since the effective date of service connection on May 14, 2003. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The benefit sought on appeal is accordingly denied. Extraschedular Consideration Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to 38 C.F.R. § 3.321(b)(1), an extra-schedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2009); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In the current appeal, the Board has considered the issue of whether the Veteran's neurological manifestation of the right lower extremity presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2009); Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996). In this regard, the Board notes that there is no evidence in the claims file of frequent periods of hospitalization or marked interference with employment due solely to the Veteran's neurological manifestation of the right lower extremity. While the Veteran reported in the October 2009 VA examination that the extent of additional limitation of motion and functional impairment during a flare-up of the spine condition was incapacitation, he also reported having no incapacitating episodes of spine disease and his reported incapacitation was not attributed solely to the neurological abnormality of the right lower extremity. In addition, while the Veteran reported that he was unemployed for the last one to two years as he was unable to do the physical requirements of his job due to his lumbar spine pain, there are no findings of a marked interference with employment due solely to the neurological manifestation of the right lower extremity, nor has the Veteran claimed that the neurological manifestation of the right lower extremity, by itself, caused any unemployability. As a result, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial disability rating in excess of 20 percent for a neurological manifestation of the right lower extremity is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs