Citation Nr: 1222656 Decision Date: 06/28/12 Archive Date: 07/10/12 DOCKET NO. 07-32 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an initial increased evaluation in excess of 10 percent for left lower extremity numbness. 2. Entitlement to an effective date earlier than September 27, 2004, for the grant of a separate compensable evaluation for left lower extremity numbness. ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to March 1985. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Oakland, California (RO). In that rating decision, the RO granted a separate compensable evaluation for left lower extremity numbness and assigned a 10 percent evaluation, effective from September 27, 2004. The Veteran appealed both the assigned evaluation and effective date. In July 2010, the Board remanded the matters on appeal to the RO (via the Appeals Management Center (AMC)) for additional development. The Board instructed the RO/AMC to obtain copies of missing VA examination reports dated in May 2005 and July 2005, and provide the Veteran with new VA examinations to evaluate the severity of his left lower extremity disability and to obtain a medical opinion on whether the Veteran's left varicocele disorder is the result of VA negligence. A review of the record reflects that there has been compliance with the Board's July 2007 remand directives, and the Board finds that it may proceed with adjudication of that matter without prejudice to the Veteran. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Board acknowledges that subsequent to the April 2012 supplemental statement of the case (SSOC), the Veteran submitted additional statements in support of his claims. However, the arguments raised by the Veteran in these April 2012 statements are duplicative and cumulative of assertions he has previously raised during the pendency of this appeal. Thus, there is no necessity to either seek a waiver of initial RO review and consideration of the information from the Veteran or remand the appeal for RO consideration of the information, and the Board may proceed with appellate review of the case. See 38 C.F.R. § 20.1304 (2011). Issues Not on Appeal: The Board notes that in the October 2005 rating decision, the RO also denied entitlement to service connection for varicose veins in the left scrotum. When the Veteran initiated his appeal to that matter, he raised a new theory of entitlement for compensation under the provisions of 38 U.S.C.A. § 1151 for varicose veins in the left scrotum. That additional theory of entitlement was considered in a January 2009 SSOC. During the pendency of this appeal, the RO, in an April 2012 rating decision, awarded entitlement to service connection for varicose veins in the left scrotum (identified as left varicocele). Although RO continued to deny entitlement to compensation under the provisions of 38 U.S.C.A. § 1151, given the benefits that have now been awarded under a direct theory of entitlement for service connection for left varicocele, and there is no current question of additional compensation left unaddressed, the matter is no longer on appeal. If the Veteran feels that he has an additional disability outside what is considered his claim for left varicocele, he needs to file a new claim. Also, in the April 2012 correspondences, the Veteran has raised additional claims of entitlement to service connection for right lower extremity neurologic disorder and left arm and fingers neurologic disorders, but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Throughout the entire period under appeal, the Veteran's neurologic disability in his left lower extremity has been manifested by no more than moderate incomplete paralysis. 2. On April 21, 1997, VA received the Veteran's claim for entitlement to service connection for lumbar spine disability, which was granted and assigned a compensable evaluation in a February 2000 rating decision. The Veteran initiated an appeal as to the initial assigned rating for lumbar spine disability, to include consideration any of neurologic impairment (claimed as numbness and weakness) in the left lower extremity, on March 10, 2000. The Veteran's appeal was continuously adjudicated thereafter, including in the October 2005 rating decision, in which the RO awarded a separate 10 percent evaluation for radiculopathy of the left lower extremity as secondary to lumbar spine disability, effective from September 27, 2004. 3. As of September 26, 2003, VA regulations provide for separate evaluations for any objective neurologic abnormality associated with a spine disability. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 20 percent, and no higher, for the entire period under appeal, for the left lower extremity, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Code 8520 (2011). 2. Entitlement to an effective date earlier of September 26, 2003, and not earlier, for a grant of a separate evaluation for left lower extremity numbness associated with the lumbar spine disability is warranted. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VA must also specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Initially, the Board notes that the issues of entitlement to an initial increased rating and an earlier effective date for grant of a separate rating for radiculopathy in right lower extremity are downstream issues, arising from the initial evaluation assigned for the disability once the RO awarded service connection. For downstream issues, no VCAA notice is required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. VA provided the Veteran with VA examinations in May 2005, July 2005, and August 2010, to evaluate the severity of his neurologic disorder in his left lower extremity. The Board acknowledges the Veteran assertions that the May 2005 VA examination report is inadequate because the May 2005 examiner was an orthopedist and not a neurologist. Due to the Veteran's contentions, he was afforded another VA examination in July 2005, with a neurologist. Given the Veteran's contentions and the relatively short period of time between the 2005 examinations, the Board will not consider the findings from the May 2005 VA examination report in order to evaluate the Veteran's disability under the appropriate rating criteria. Both the July 2005 and August 2010 examination report, the VA examiner recorded the Veteran's medical history, his subjective complaints, and findings from clinical evaluation, and identified the nature of his neurologic impairment. The Board finds that the VA examinations and subsequent VA medical opinion are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present 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 the increased rating claim has been pending). Here, the RO has awarded a separate rating based upon the neurological abnormality in the left lower extremity associated with the Veteran's lumbar spine disability. The Veteran was assigned a 10 percent rating under the criteria associated with Diagnostic Code 8520, for paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The words "slight," "mild," "moderate" and "severe" as used in the various diagnostic codes 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. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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 only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.123. In this case, the Veteran seeks a higher initial assigned evaluation for his disability due to neurologic impairment in his left lower extremity. He is current assigned a 10 percent rating under Diagnostic Code 8520. A review of the claims folder shows that the Veteran first started complaining of numbness and/or weakness in his left lower in the earlier 1990s. The report of a private September 1993 MRI request shows that the Veteran was to undergo an MRI in order to rule out any evidence of radiculopathy. Although the findings from that 1993 MRI are not contained in the claims folders, the reports of subsequent diagnostic testing do not reflect findings of root nerve impingement in the lumbar spine. At the time of a September 1999 VA orthopedic examination, there are objective findings of decreased sensation and muscle strength. At that time, the VA examiner found that the Veteran had chronic low back pain with degenerative disc disease and probable left sensory radiculopathy. Subsequent medical evidence continues to reflect subject complaints of numbness, weakness and pain in the left lower extremity and objective findings of decreased sensation and muscle strength. However, no diagnostic test confirmed findings of neurologic impairment in the left lower extremity until the report of a July 2005 EMG study, which was performed in conjunction with a VA examination at that time. See the reports of MRI dated in March 2000, May 2001 VA MRI revealed no evidence of any nerve impingement; and the reports of a June and December 2000 private EMG study containing normal findings. The July 2005 VA examination report shows that the Veteran complained of weakness, numbness, soreness, and pain in his left lower extremity. The Veteran described the pain as both dull, constant pain and as radiating pain down the posterior of his leg. Pain increased with activities and reduces with sitting down and laying on his right side. Physical examination revealed objective findings of normal strength, but also findings of decreased reflexes and sensation in the left lower extremity. The examiner noted that a review of the MRI findings did not reveal any compression of the nerve root, but the findings from the EMG report were abnormal, and the examiner felt the findings suggested polyneuropathy in the left foot. The VA examiner found that there was no evidence of lumbosacral radiculopathy, or any signs or symptoms of lumbosacral radiculopathy affecting the left lower extremity. The VA examiner found that the numbness in the Veteran's left foot was secondary to idiopathic polyneuropathy associated with his lumbar spine disability. Pursuant to the Board's July 2010 remand directives, the Veteran was afforded VA nerve and orthopedic examinations in August 2010 to evaluate the severity of his disability due to neurologic impairment in left lower the extremity. The August 2010 VA nerve examination was conducted by the same neurologist who performed the previous July 2005 examination. In that examination report, the examiner recorded the Veteran's complaints of numbness, soreness and pain extending from his groin area down to his feet. He also described experiencing tingling and burning sensations down both of his legs. The Veteran also reported that when he takes longer walks, he notices that his left foot will drag sometimes and will trip on the carpet or an object. He has difficulty with prolonged walking, sitting and standing. The Veteran reported that he uses a cane and left foot brace when his left foot curves out. On physical examination, the examiner noted that there was evidence of minimal weakness in the left foot, but no other muscle strength abnormalities in the left lower extremity. There was no evidence of atrophy, involuntary movements, or tremors in the left lower extremity. The Veteran had decreased reflexes in the left knee and absent reflexes in the left foot. There was also objective evidence of decreased sensation in the left lower extremity. The VA examiner noted that the loss of hair on the skin of both legs below the knee was a sign of dystrophy from neuropathy. A nerve conduction study at the time of August 2010 VA nerve examination revealed objective findings slightly prolonged sensory latency in the tibial and sural nerves, which the examiner felt suggested a diagnosis of peripheral neuropathy or polyneuropathy. In comparing the findings between the 2005 and the current VA examination, the VA examiner found that the diagnostic testing revealed "findings are very similar" and confirm the previous diagnosis of polyneuropathy. The VA examiner provided the following diagnosis in the left lower extremity: idiopathic polyneuropathy causing subjective paraesthesia, reduced reflexes peripherally, and reduced sensation in stocking distribution with objective evidence of hair loss. The report of the August 2010 VA orthopedic examination report shows that Veteran complained of numbness, weakness, soreness, and pain in his left foot/ankle. He reported that his symptoms are constant, and he reported occasions of severe flare-ups which occur twice a week and can last up to a day or two. He describes these occasional flare-ups as "incapacitating." He also complained of losing his balance when climbing stairs. The Veteran reports that he has an acquired deformity of this left foot, which he has been told is a foot drop and treats with cortisone injections. He denied any surgery on his left foot or ankle. On physical examination, there was no evidence of significant swelling effusion, deformity, or instability in the joint, and muscle strength and reflexes were evaluated as normal. There was evidence of decreased range of motion on dorsiflexion in the left foot. The examiner observed that the Veteran wore a hard brace, but his gait was stable, without a limp, although he took cautious steps with the left foot. There was evidence of some tenderness and decreased sensation. An impression of left ankle pain, weakness, and numbness was given. The VA examiner opined that there was no evidence of paralysis and there was reasonable function of the left foot that is better than provided with an amputation stump and prosthesis. In light of the evidence of record described above, the Board finds that the radiculopathy in the left lower extremity is comparable to moderate, incomplete paralysis of the sciatic nerve throughout the entire period under appeal. In this case, there is evidence of moderate paralysis in the lower extremities, manifested by subjective complaints of weakness, numbness and radiating pain, as well as objective findings of decreased sensation and reflexes, and limited motion in the left foot. The Veteran has complained of weakness, numbness and pain in both his legs throughout the appeal period, and those complaints have been consistently documented in the evidence of record. As such, a 20 percent evaluation and no more is warranted pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520 for the entire period under appeal. Here, the findings consist of complaints of numbness, radiating pain and some decrease in sensation and reflexes. Although the Veteran complains of loss of strength, the most recent VA examination revealed lower extremity motor strength was normal and there was no evidence of muscle atrophy. Also, the Veteran had a stable gait, without a limp, albeit he took caution steps. Overall, the Board finds that this constellation of manifestations more closely approximates the level of "moderate" neuropathy to warrant an evaluation of 20 percent. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. This 20 percent evaluation includes consideration of the Veteran's reports of flare-ups involving his left lower extremity. 38 C.F.R. § 4.6. An evaluation in excess of 20 percent has not been demonstrated by the evidence of record at any point during the period under appeal. There was no evidence of foot drop, paralysis, constant weakness, or muscle atrophy. Significantly, the Board notes that the EMG reports only revealed findings of slight neurologic impairment. Moreover, the August 2010 VA examiner opined that the reasonable function of the left foot that is better than provided with an amputation stump and prosthesis. As such, the criteria for a higher 40 percent rating under Diagnostic Code 8520 have not been met. See 38 C.F.R. § 4.7. Accordingly, the Veteran's disability due to left lower extremity numbness more closely approximates a 20 percent evaluation for the entire period under appeal. See 38 C.F.R. § 4.124a. To the extent that any further increase was denied, the preponderance of the evidence is against the claim and the appeal is denied. The Board has also considered whether an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is warranted. That provision provides that in exceptional circumstances, where the schedular evaluations are found to be inadequate, the Veteran may be awarded a rating higher than that encompassed by the schedular criteria, as demonstrated by evidence showing that the disability at issue causes marked interference with employment, or has in the past or continues to require frequent periods of hospitalization rendering impractical the use of the regular schedular standards. According to 38 C.F.R. § 4.1, "generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability." The Veteran has not presented any evidence that the service-connected disability at issue have resulted in a unique disability that is not addressed by the rating criteria for neurologic impairments. As his symptomatology is contemplated by the rating schedules, referral for extraschedular consideration is not appropriate here. See Thun v. Peake, 22 Vet. App 111, 115-16 (2011). The Veteran has already been assigned a total disability rating due to individual unemployability (TDIU) since 2001. 4. Earlier Effective Date The Veteran seeks an effective date earlier than September 27, 2004, for the grant of a separate compensable evaluation for left lower extremity numbness, following his initial appeal to a February 2000 rating decision that granted and assigned a compensable evaluation for lumbar spine disability. Since the grant of the separate evaluation essentially constitutes an increase rating for the symptomatology associated with the Veteran's lumbar spine disability, the current claim on appeal will be addressed under the VA law regarding effective date of an award of increased compensation. VA law provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. In this case, the Veteran seeks earlier effective dates prior to September 27, 2004, for a separate 20 percent evaluation for left lower extremity numbness. He asserts that an earlier effective date for the separate 20 percent evalution for left lower extremity numbness should date back to his original claim Veteran's claim for entitlement to service connection for lumbar spine disability that VA received on April 21, 1997. A review of the record shows that on April 21, 1997, VA received the Veteran's claim for entitlement to service connection for lumbar spine disability, which was granted and assigned a compensable evaluation in a February 2000 rating decision. The Veteran intiated an appeal as to the initial assigned rating for lumbar spine disability, to include consideration any neurologic impairment (claimed as numbness and weakness) in the left lower extremity, on March 10, 2000. The Veteran's claim was continuously adjudicated thereafter, including the October 2005 rating decision, in which the RO awarded a separate 10 percent evaluation for radiculopathy of the left lower extremity as secondary to lumbar spine disability, effective from September 27, 2004. The grant of the separate evaluation essentially constituted an increase rating for the symptomatology associated with the Veteran's lumbar spine disability, following the following his initial appeal for an increased evaluation for lumbar spine disability. In this regard, the separate evaluation was awarded during the pendency of the Veteran's original appeal for initial increased rating for lumbar spine disability (which was subsequently adjudicated in a final November 2006 Board decision). During the pendency of the Veteran's original initial increased rating appeal, effective as of September 26, 2003, substantive changes were made to the schedular criteria for evaluation of diseases and injuries of the spine, including providing for a separate compensable evaluation for any associated objective neurologic abnormalities under the appropriate diagnostic code. 38 C.F.R. § 38 C.F.R. § 4.71a, general rating formula for diseases and injuries of the spine, Note (1). Prior to the 2003 amendments, the rating criteria for evaluating a lumbar spine disability included evaluation of neurologic impairment under Diagnostic Code 5294 for sacro-iliac injury and weakness, which was rated by comparison to Diagnostic Code 5295 for lumbosacral strain. 38 C.F.R. § 4.71a, Diagnostic Codes 5294 and 5295 (in effect prior to September 26, 2003). The amended regulations as of September 26, 2003, provided for separate evaluations for neurologic impairments affecting each extremity as a result of spine disability. 38 C.F.R. § 38 C.F.R. § 4.71a, general rating formula for diseases and injuries of the spine, Note (1). The Veteran was assigned the separate 10 percent rating for left lower extremity numbness as secondary to his lumbar spine disability in accordance with Note (1) of the amended regulations. Id. Pursuant to VA General Counsel Opinion, when a law or regulation is enacted or a new regulation is issued while a claim is pending, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. Where that statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. A new law or regulation has prohibited "retroactive effects" if it is less favorable to a claimant than the old law or regulation; while a liberalizing law or regulation does not have "retroactive effects." If there are no resulting retroactive effects, VA ordinarily must apply the new provision-however, at no point prior to the effective date of that provision. See VAOPGCPREC 7-2003 (Nov. 19, 2003); 69 Fed. Reg. 25179 (2004). See also, 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. The Board acknowledges that the Veteran's originally claim was received on April 21, 1997 and the Veteran complained of numbness and weakness in his left lower extremity throughout the entire pendency of his appeal. However, since the award of a separate 10 rating pursuant to the liberalizing change to 38 C.F.R. § 4.71a, effective from September 26, 2003, the benefits pursuant to the change will be effective no earlier than the effective date of the amended law. See VAOPGCPREC 7-2003 (Nov. 19, 2003); 69 Fed. Reg. 25179 (2004). See also, 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. In accordance with these provisions, the Board finds that the proper assignment of effective date for the Veteran's separate 10 percent evaluation for left lower extremity numbness as secondary to lumbar spine disability is September 26, 2003, the exact effective date of the liberalizing changes to 38 C.F.R. § 4.118. The applicable law and regulations on the assignment of effective dates are binding in determining the outcome of this matter. See 38 U.S.C.A. § 7104(c). Here, based on a review of the evidence the Board finds that the assigned effective date for the separate 10 percent evaluation should be September 26, 2003, which is the effective date of the liberalizing change. The assignment of effective date of September 26, 2003, and not earlier, for separate 10 percent evaluation for disability due to left lower extremity numbness, is warranted. See 38 C.F.R. §§ 3.114(a), 3.400(p). ORDER An initial evaluation of 20 percent, and no higher, for the left lower extremity, is granted. Entitlement to an effective date earlier of September 26, 2003, and not earlier, for a grant of a separate evaluation for left lower extremity numbness associated with the lumbar spine disability is granted. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs