Citation Nr: 1007296 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-03 414A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a separate initial compensable rating for radiculopathy of the left lower extremity effective prior to March 20, 2006, and a rating in excess of 20 percent thereafter. REPRESENTATION Veteran represented by: Kristina L. Derro, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1957 to April 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, that continued the prior 20 percent evaluation for residuals of the Veteran's vertebral fracture. During the pendency of the Veteran's appeal, the RO granted a separate evaluation of 20 percent for the Veteran's radiculopathy of the left lower extremity, a condition that had previously been included within the evaluation and compensation provided for the service-connected fracture of the vertebrae of the lumbar spine. Compare Rating decision, September 2005 (granting noncompensable neurological rating included with lumbar disability) with Rating decision, February 2007 (granting separate 20 percent evaluation for neurological abnormality); see also 38 C.F.R. § 4.71a, General Rating Formula for Diseases & Injuries of the Spine, Note (1) (requiring any associated objective neurological abnormality to be separately evaluated under an appropriate diagnostic code) (2009). To be clear, the Veteran presently has two separate 20 percent evaluations that stem from the increased rating claim for his lumbar spine disability. There is a 20 percent orthopedic evaluation for the spinal injuries, as well as a 20 percent neurologic evaluation for left lower extremity radiculopathy. Rating decision, February 2007. By decision in October 2008, the Board denied the claims for an increased rating for the Veteran's spine condition, to include both the orthopedic and neurologic manifestations thereof. He appealed to the United States Court of Appeals for Veterans Claims (Court) which, by Order dated September 29, 2009, granted a Joint Motion for Partial Remand (Joint Motion). The Veteran did not challenge the Board's determination with respect to evaluation of the orthopedic component of his disability. Therefore, only the neurologic evaluation pertaining to radiculopathy of the left lower extremity is currently before the Board for further appellate consideration. In connection with this appeal, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in January 2006; a transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. Prior to March 20, 2006, objective medical testing confirmed chronic radiculopathy of the left lower extremity, but motor testing was normal, there was no evidence of muscle atrophy, and the preponderance of the evidence shows that ankle reflexes were preserved. 2. As of March 20, 2006, neurological examination reveals a moderate degree of lumbar radiculopathy involving the left leg, manifested by muscle weakness and depressed ankle reflex with no atrophy. CONCLUSIONS OF LAW 1. Prior to March 20, 2006, the criteria for an initial compensable rating for radiculopathy of the left lower extremity are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.59, 4.71a, Diagnostic Code 8520 (2009). 2. As of March 20, 2006, the criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.59, 4.71a, Diagnostic Code 8520 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2009). The rating for radiculopathy is a separate rating granted by the RO in conjunction with the Veteran's claim for an increased rating for residuals of his vertebral fracture. It is not a separate claim for an increased rating submitted directly by the Veteran, and as such is comparable to an appeal of the initial rating assigned in conjunction with the grant of service connection. As such, adequate notice was not delivered prior to the initial assignment of the rating. However, once service connection is granted, the claim is substantiated and prior notice defects are rendered non- prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008). Thus, VA's duty to notify with respect to the radiculopathy claim is fulfilled. VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2009). Service treatment records have been associated with the claims file. The Veteran has been medically evaluated in conjunction with his claims on multiple occasions. All identified and available treatment records have been secured. The duty to assist has been fulfilled. Disability Evaluations The Veteran seeks a higher evaluation for radiculopathy of the left lower extremity associated with his service- connected residuals of vertebral fracture. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155 (West 2002); 38 C.F.R. Part 4 (2009). When a question arises as to which of two ratings applies under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2009). Since a rating decision issued by the RO in September 2005, service connection has been in effect for lumbar radiculopathy of the left lower extremity as secondary to the Veteran's vertebral fracture. Although this condition was initially rated as noncompensable, and on that basis, was included in the total evaluation of the vertebral fracture, the RO subsequently separated these manifestations for rating purposes and granted a separate 20 percent rating effective as of March 20, 2006 for radiculopathy of the left lower extremity under DC 8520. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the current level of disability is of primary concern in a claim for an increased rating; and the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In the present case, the symptoms of the Veteran's service- connected disability have remained relatively constant within the existing stages (prior to and since March 20, 2006). Thus, additional staged ratings are not found to be necessary. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve, stating 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 (where the foot dangles and drops, no active movement is possible of muscles below the knee, or flexion of the knee is weakened or lost) is rated as 80 percent disabling. 38 C.F.R. § 4.124a (2009). Words such as "moderate" and "severe" are not defined in the VA 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 (2009). Factual background The Veteran has described experiencing neurologic symptoms secondary to his service-connected vertebral fracture. Specifically, he has described pain that radiates from the lower back down the left leg. He has been diagnosed with lumbar radicular pain by a private physician. See Neurology examination, December 2000. The Veteran's private medical treatment records have been thoroughly reviewed by the Board although many portions of the hand-written records are illegible. Complaints pertinent to knee and leg pain are evident, but appear to be at least partially orthopedic in nature. See Diagnosis of degenerative joint disease of the knee, April 2005; Bilateral knee x-ray, March 2003; Physical therapy report after motor vehicle accident, February 1998. There is also documentation of left side sciatica. Private treatment record, January 2005. Cervical and lumbar radiculopathy was noted with radiating pain in both the upper and lower extremities, and the private medical record generally does not identify the referenced extremity in which strength testing, sensory examination and deep tendon reflexes are measured and thus cannot be applied specifically to the left leg. See, e.g., Private treatment records by Dr. JB, April 2000 (reporting varying radicular pain since motor vehicle accident). A July 2000 report appears to reference only the lumbar radicular pain. There is a reference to "ankle jerks plus one" although it is not apparent if this is the right or left ankle. Even if construed to reference the left lower extremity specifically, sensory examination was symmetric to vibration and strength was normal. Deep tendon reflexes were +1-2. Private treatment records, supra. A more thorough September 2004 private neurologic consultation is also of record addressing the primary complaint of persistent headaches. Strength testing, both proximally and distally, was noted to be entirely normal (5 out of 5) in all four extremities. Sensory testing revealed normal temperature and vibratory sensation in all extremities, but tendon stretch reflexes were noted to be diminished throughout particularly in the lower extremities. Nonetheless, the overall neurologic examination was determined to be rather unremarkable. Neurological consultation by Dr. PB, September 2004. The Board now turns to a discussion of the VA Compensation & Pension examination reports of record. Pursuant to the aforementioned Joint Remand, the Veteran's attorney has directed the Board's attention to a May 2003 VA spine examination. This examination pre-dates the present appellate period by over a year and documents essentially the same neurologic complaints identified in two other VA examinations during the appellate period prior to March 2006. The Veteran complained of radiating pain and dragging of the left leg. Neurological examination demonstrated symmetrical deep tendon reflexes with sensory deficits on the outer margin of the right leg only. A history of fracture of the sacrum with radicular pain was diagnosed, but there were no other clinical diagnosis of any specific left leg neurological abnormality. VA examination, May 2003. In a February 2005 VA examination, the Veteran again described radicular type pain down the left leg and stated that he drags his left leg particularly after repetitive activities. Nonetheless, the Veteran did not use a cane or crutch and stated that he could ambulate approximately two to three blocks at a time. Despite the Veteran's orthopedic and neurologic complaints, he was able to hold down two part time jobs driving delivery vehicles. He had no restrictions in his activities of daily living with the exception of a restriction in walking distances more than several blocks. The Veteran was observed to "mildly" drag his left leg; however the neurological examination revealed no atrophy and no sensory deficit. Ankle reflexes were preserved. Again, there was no specific clinical finding of a diagnosed left leg neurological abnormality. VA examination, February 2005. In June 2005, the same VA examiner reported symptomatology consistent with that previously reported. He stated that EMG and nerve conduction studies of the left lower extremity confirm chronic radiculopathy. Nonetheless, motor testing was evaluated as normal (a 5 out of 5) and ankle reflexes were preserved. The examiner also noted "patchy epithesia" down the outer margin of the left lower extremity. VA examination, June 2005. However, the meaning of this finding is undetermined as the Board has not been able to identify a standard medical definition of the term "epithesia" as it does not appear in regular medical reference dictionaries or common Internet resources. See, e.g., Stedman's Medical Dictionary (27th ed. 2000). Instead, the most nearly related term of epithesis does not seem to have any readily apparent relevance to the Veteran's symptomatology. See, e.g., Dorland's Illustrated Medical Dictionary 645 (31st ed. 2007) (defining epithesis as the surgical correction of deformity or of crooked limbs, or a splint to be worn). Thus, the one- time finding of epithesia is noted, but not independently quantifiable. In January 2006, the Veteran appeared at a local hearing before a DRO to provide testimony with regard to a claimed increase in severity of his back condition. Of note, a few months prior to this hearing, secondary service connection had been established for radiculopathy of the left lower extremity. However, as the severity of the left leg disability was determined to be noncompensable at the time, it was merely included within the evaluation for the service- connected back injury residuals. See Rating decision, September 2005. At the time of the hearing, the Veteran explained that his overall condition had gotten worse because he was dragging his left side "now." DRO hearing, January 2006. The Board notes, however, that a left side drag had been medically documented several years prior. See, e.g., VA examination, May 2003. Nonetheless, a new VA examination was afforded the Veteran in March 2006 to determine the current severity of his lumbar spine problems with radiculopathy involving the left lower extremity. The same VA examiner who had performed prior examinations in May 2003, February 2005, and June 2005 now found a moderate degree of lumbar radiculopathy involving the left leg. At this time, the Veteran described burning pain that radiated into the left thigh, through the calf, and through the entire left foot. He described dragging the left leg at times, using a cane or a brace when necessary. (It is unclear whether this refers to a leg brace or a back brace.) However, the Veteran continued to be able to ambulate two to three blocks before resting. The Veteran had no history of bladder or bowel dysfunction. He was not taking any prescription medication to control his symptoms. Neurological examination revealed weakness of the left gastrocnemius and left tibialis anterior muscle with depressed left ankle reflex, but no muscle atrophy. No further diagnostic testing was deemed warranted by the physician. VA examination, March 2006. Analysis In applying the relevant law and diagnostic codes to the facts at hand, the Board finds that no change in the existing ratings is warranted for the Veteran's left lower extremity radiculopathy. In particular, prior to March 20, 2006, the Veteran is noted to have a slight left leg drag, but is generally found to have no muscle atrophy, no motor deficit, and no definable sensory deficit in the left lower extremity on objective examination. See VA examination, supra; Private neurologic consultation, September 2004. Upon VA examinations, his ankle reflexes were found to be preserved throughout this portion of the appellate period. Generally diminished tendon stretch reflexes were noted in all extremities during a private consultation, but the record does not qualitatively or quantitatively specify the ankle reflexes. Private neurologic consultation, September 2004. While the left leg drag is noted and the Veteran's complaints of radicular pain are found to be credible, the totality of the evidence does not portray compensable paralysis of the sciatic nerve, particularly given the normal objective motor and sensory testing of the left leg. In all, based on the total picture of the Veteran's disability, the Board finds that prior to March 2006, his radiculopathy of the left lower extremity does not warrant a separately compensable rating for mild incomplete paralysis of the sciatic nerve as contemplated by DC 8520. However, as of March 20, 2006, and in contrast to earlier examinations, the Veteran exhibited a 4+ over 5 depressed left ankle reflex. There continued to be no muscle atrophy, although the Veteran now reported use of a cane when necessary as opposed to earlier examinations where the Veteran described not using such an assistive device. Compare VA examinations, March 2006 & February 2005. The March 2006 examiner described the Veteran's lumbar radiculopathy as now being moderate in degree. Based on the foregoing, particularly given the quantifiable increase in severity identified by objective ankle reflex measurements, the Board finds that the Veteran's radicular symptoms more nearly approximate the criteria for moderate incomplete paralysis of the sciatic nerve evaluated as 20 percent disabling. 38 C.F.R. § 4.124a, DC 8520. The Board does not find that a rating in excess of 20 percent is warranted. In particular, a 60 percent rating for "severe" symptoms contemplates "marked muscular atrophy." Id. This implies that the next lower rating at the moderately severe level (40 percent) would include symptomatology consistent with some, but less than marked, muscular atrophy. Id. Muscle weakness, but no atrophy, is found to be present in this Veteran's case. VA examination, March 2006. Thus, the Veteran is not found to have moderately severe symptomatology as contemplated by the rating criteria. Additionally, complete paralysis of the sciatic nerve is not evident as there are no findings consistent with symptoms such as foot drop or an absence of movement of muscles below the knee. Therefore, as of the date of this examination, the Board finds that the Veteran's radiculopathy was of a moderate degree, warranting an evaluation of 20 percent, but no higher. 38 C.F.R. § 4.124a, DC 8520. Lastly, in reaching the above decision, the potential application of various provisions of Title 38 of the Code of Federal Regulations have been considered, whether or not they were raised by the appellant, as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions regarding extraschedular ratings. The Board finds that the evidence of record does not present "an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2009); see also Thun v. Peake, 22 Vet. App. 111, 115-16 (2008) (referral for extraschedular rating warranted only where level of disability is not contemplated by rating schedule and disability picture exhibits other related factors showing unusual or exceptional disability picture). Also, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, the Board finds that a claim for a TDIU is not raised by the record as the evidence of record fails to show that the Veteran is unemployable. In this regard, the Veteran was noted to be gainfully employed in one or more part-time jobs during the appellate period. See e.g., VA examinations, June 2005 & February 2005. Therefore, the Board finds that no further consideration of a TDIU is warranted. In sum, an initial compensable evaluation for the Veteran's radiculopathy of the left lower extremity prior to March 20, 2006, or an evaluation in excess of 20 percent thereafter, is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Any reasonable doubt with regard to the severity of the Veteran's symptomatology has been resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, as the preponderance of the evidence is against the Veteran's claim for higher ratings than those presently established, the benefit of the doubt provision does not apply and the claim must be denied. ORDER Prior to March 20, 2006, a separately compensable evaluation for radiculopathy of the left lower extremity is denied. As of March 20, 2006, a rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. ____________________________________________ A. JAEGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs