Citation Nr: 1300138 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 08-23 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected degenerative changes at L4-5 and L5-S1 and left knee strain associated with degenerative changes at L4-5 and L5-S1. 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity associated with degenerative changes at L4-5 and L5-S1. 3. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity associated with degenerative changes at L4-5 and L5-S1. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to July 1986, from October 2001 to November 2002, and from June 2003 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in August 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. By that decision, the RO granted service connection for radiculopathy of each lower extremity, due to service-connected degenerative changes at L4-5 and L5-S1, and assigned 10 percent evaluations therefor, effective from November 2005. In addition, the RO denied service connection for a right knee disorder, to include as secondary to the service-connected degenerative changes at L4-5 and L5-S1. Pursuant to his request, the Veteran was afforded a videoconference hearing before the Board in August 2012. A transcript of that proceeding is of record. The issue of the Veteran's entitlement to service connection for a right knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. In August 2012, prior to the promulgation of a decision in this appeal, the Veteran by his signed, written statement withdrew from appellate consideration the issue of his entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity. 2. There is a showing of no more than mild incomplete paralysis of the sciatic nerve due to radiculopathy of the left lower extremity associated with degenerative changes at L4-5 and L5-S1, from November 9, 2005. 3. The applicable rating criteria are adequate for the rating of all pertinent manifestations of the service-connected disability under review at this time. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal involving a claim for an initial rating in excess of 10 percent for radiculopathy of the right lower extremity by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for the assignment of an initial rating in excess of 10 percent for radiculopathy of the left lower extremity from November 9, 2005, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Issue The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran at his August 2012 hearing and by his signed, written statement of August 2012 withdrew from appellate consideration the issue of his entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity. As there remain no allegations of error of fact or law for appellate consideration as to that matter and the Board does not have jurisdiction to review the appeal relating thereto, it must therefore be dismissed. Duties to Notify and Assist as to the Claim for Initial Rating for Left Leg Radiculopathy Before addressing the merits of the Veteran's claim for an initial rating for left leg radiculopathy, the Board is required to ensure that the VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). The notification obligation in this case was accomplished by way of December 2005 and April 2011 letters from the RO to the Veteran, initially addressing the various claims advanced for service connection and more recently the claim for a higher initial rating. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice is to be furnished to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini, supra. Here, VCAA notice was provided to the appellant in connection with his original claim for service connection at a point in time prior to entry of the RO's initial rating decision in August 2006, in accord with Pelegrini. Moreover, the claim for initial rating herein on appeal is a downstream issue from that of service connection and further VCAA notice as to downstream matters is not required. See VAOPGCPREC 8-2003 (Dec. 22, 2003); 69 Fed. Reg. 25180 (2004). The U.S. Court of Appeals for Veterans Claims has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the Veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess/Hartman v. Nicholson, 19 Vet. App. at 491; see also Goodwin v. Peake, 22 Vet. App. 128 (as to a claim for an earlier effective date that "where a claim has been substantiated after the enactment of the VCAA, [the veteran] bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements." In light of the foregoing, and in the absence of any allegation of prejudice by or on behalf of the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. VA has also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The record includes the Veteran's service treatment records, in addition to a various medical treatment records compiled by VA and non-VA sources during postservice years. Also, the Veteran has not made the RO or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed on its merits, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record indicates that VA has afforded the Veteran multiple VA medical examinations in order to ascertain the nature and severity of the disability in question. The reports from these examinations are found to be sufficiently detailed as to permit fair and equitable consideration of the merits of the issue presented. The Board finds that the examinations were adequate to allow proper adjudication of the issue on appeal. The examiners conducted complete examinations, recorded all findings considered relevant under the applicable diagnostic code, and considered the full history of the disability. As such, further development action relative to the disability herein at issue is not required. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulations. Analysis of the Initial Rating Claim for Left Leg Radiculopathy Disability ratings are intended to compensate impairment in earnings capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes (DCs) identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). In Hart v. Mansfield, 21 Vet. App. 505 (2007), it was held that "staged ratings are appropriate for an increased-rating claim when the factual findings shown distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." In this instance, service connection for radiculopathy of the left lower extremity, in association with degenerative changes at L4-5 and L5-S1, was granted by RO action in August 2006. At that time, a 10 percent rating was assigned therefor under DC 8520, effective from November 9, 2005. Thus, the question presented by this appeal is whether an initial rating in excess of 10 percent is for assignment of left leg radiculopathy from November 9, 2005, to the present. Under DC 8520, which sets forth the rating criteria for sciatic nerve disorders, a veteran will receive ratings of 10, 20, 40 or 60 percent for mild, moderate, moderately severe, or severe (with marked muscular atrophy) incomplete paralysis from this nerve. 38 C.F.R. § 4.124a, DC 8520. A maximum 80 percent evaluation will be awarded for complete paralysis of the sciatic nerve manifested by the foot dangling and dropping, no active movement possible of muscles below the knees, and flexion of the knee weakened or (very rarely) lost. Id. 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. 38 C.F.R. § 4.124a. 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, and when there is bilateral involvement, the VA adjudicator should combine the ratings for the peripheral nerves, with application of the bilateral factor. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate incomplete paralysis. 38 C.F.R. § 4.123 (2012). Peripheral neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124 (2012). The use of terminology such as "mild," "moderate," and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6 (2012). In his written statements of record and in his oral testimony in August 2012, the Veteran alleged that a higher initial rating for left leg radiculopathy is warranted on the basis of pain, falls and an impaired gait due to foot drop and tingling in the calf. These were noted to occur three to five times weekly in varying severity, but which at times were debilitating. Primary treatment was noted to entail medication, massage, and physical therapy and the level of treatment received was alleged to be consistent with disability that was moderate to moderately severe. On three occasions in the prior year, use of sick leave was made because of pertinent symptoms. Notwithstanding the Veteran's allegations that the disability in question is under-rated, VA examination in March 2006 showed motor and sensory function of the left lower extremity to be within normal limits, with two plus reflexes at the knee and ankle. Some pain in the posterior left thigh with straight leg raising was present, but not beyond the knee. The pertinent diagnosis was of no radiculopathy, with equivocal left sciatica; only subjective complaints of pain were noted. Further VA examination in May 2011 revealed left sciatic nerve involvement, with a subjective complaint of pain and the lone objective manifestation of decreased sensation of the left leg indicating neuritis. No left foot drop was demonstrated or diagnosed; an antalgic gait was attributed by the Veteran to hip and low back pain. On a VA examination in October 2011, the Veteran complained of leg spasm, paresthesia, and intermittent numbness, but clinical evaluation showed two plus knee and ankle jerks, without pathologic reflexes and there were normal cutaneous reflexes. His gait was normal, no atrophy was present, and there were no reported sensory deficits. Radiating back pain was noted, but the neurological evaluation was described as 'normal." VA treatment records denote emergency room care was received in late 2005 and early 2006 for symptoms of sciatica, including complaints of numbness in the toes. Physical therapy by VA was ongoing until discharged therefrom in March 2006. Due to complaints of increasing pain, the Veteran underwent a VA rehabilitation consultation in September 2006, with examination showing decreased light touch of the left medial thigh and lateral foot. Deep tendon reflexes were three plus and symmetric. Use of a private chiropractor and physical therapist followed. Private medical treatment was received in April 2009 for complaints of back pain and left leg weakness; examination disclosed a normal gait and normal heel-toe walking. Deep tendon reflexes were symmetrically decreased in the knee and ankle, without muscle loss. Further private medical care was undertaken in March 2010 due to complaints of back pain, as well as numbness of the left lateral foot and toe. At that time, the Veteran appeared to be in pain and he demonstrated a slow gait. Examination of the lower extremity indicated that reflexes were two plus (referenced by the attending medical professional as normal) at the knee and ankle and sensation was grossly intact, without paresthesias. The diagnoses were of spasms and strains of the back and probable compression fracture at L-1 or L-2. The Board finds that this case turns on whether there is evidence indicating that more than mild incomplete paralysis of the sciatic nerve was present at any point from November 2005 to the present. The Veteran indicates that a higher initial rating is warranted and he cites the symptoms and manifestations that he has observed or experienced. The Veteran is competent to state what comes to him through his senses, particularly as to what symptoms he is experiencing, their severity, and also their frequency. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran's account is also credible and probative as to many of his complaints, although the record fails to substantiate the presence of foot drop or the occurrence of repeated falls due to the disability in question. There is also no corroboration regarding the Veteran's statement that his gait is adversely affected by his left leg radiculopathy. Moreover, the record does not indicate that the Veteran is in possession of the requisite medical education or training as to render competent his opinions as to medical diagnosis or etiology, to include such matters as his notation of foot drop or his attribution of his gait impairment to his left leg radiculopathy. Medical data do not point to the existence of more than mild incomplete paralysis of the sciatic nerve. Sensory deficits of the left lower extremity are indicated, which principally involve complaints of numbness and tingling and abnormalities to light touch on clinical examination. However, reflex and motor function of the left leg is not shown to be impaired, except for the notation in April 2009 of diminished deep tendon reflexes. No indication of any reflex abnormality is confirmed prior thereto or subsequently. No gait impairment specifically attributable to leg radiculopathy is demonstrated and foot drop is not objectively documented. On that basis, not more than a 10 percent schedular evaluation is warranted throughout the relevant time period beginning in November 2005 for left leg radiculopathy. Fenderson, supra. A determination of whether the claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is required, and this is a three-step inquiry. First, the Board must determine if the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. To do this, the Board or the RO must determine if the criteria found in the rating schedule reasonably describes the claimant's disability level and symptomatology. If this is the case, the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral for extraschedular consideration is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization. If the Board determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step--to determine whether, to accord justice, an extraschedular rating must be assigned. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this instance, the Veteran's service-connected disability involving left leg radiculopathy is clearly accounted for under the applicable DC and the 10 percent rating assigned therefor is judged to compensate the Veteran adequately for the level of impairment indicated, inclusive of the limitations imposed upon his ability to perform his work as a jail or corrections counselor. Evidence to the effect that the pertinent DC fail to describe adequately or contemplate the current disability level of his left leg radiculopathy is lacking, and, as such, the question of extraschedular consideration need not proceed further, as there exists no basis for the assignment of any extraschedular rating for the disability at issue. In all, a preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity, and as such, denial of the benefit sought through the instant appeal is required. Fenderson, supra; see also, e.g., Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal as to the Veteran's entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is dismissed. An initial rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. REMAND At his August 2012 hearing, the Veteran indicated that he was receiving ongoing medical treatment for a right knee disorder manifested by pain, numbness, and locking of the joint from a private treating physician, G.R. Goin, M.D. The record includes examination and treatment reports compiled by Dr. Goin, which the Veteran himself submitted directly to the RO and which do not reference the right knee. To date, no attempt has been made by VA to obtain complete records from Dr. Goin. Given that the RO has denied the claim for service connection for a right knee disorder on the basis of no current disability, it is incumbent upon VA to ascertain whether Dr. Goin has identified the existence of current disablement involving the Veteran's right knee. Remand to obtain any and all pertinent treatment records compiled by Dr. Goin is in order. Additionally, the Veteran at his August 2012 hearing testified that, when his service-connected spine and left knee disorders were acutely painful, he tended to place greater weight on his right knee, resulting in pain, strain, and further gait impairment involving his right knee. That testimony in effect expands the claim for service connection for a right knee disorder, to include as secondary to a service-connected left knee disorder. That question has not to date been developed or adjudicated by the RO and remand is necessary to undertake the needed development actions. Accordingly, this portion of the Veteran's appeal is REMANDED for the following actions: 1. Comply with the VA's duty to notify the Veteran regarding his expanded claim for service connection for a right knee disorder, to include as secondary to service-connected disabilities of the low back and left knee. 2. Obtain all pertinent VA medical records, not already on file, for inclusion in the claims folder. 3. After securing written authorization from the Veteran, obtain a complete set of examination and treatment records compiled by the Veteran's private treating physician, G.R. Goin, M.D., to include those identifying any disorder of his right knee. Once obtained, such records must be made a part of the Veteran's claims folder. 4. Once any additional medical records are received from Dr. Goin or other source, determine whether there is shown by the evidence a current disability involving the Veteran's right knee. If none is shown, then proceed to readjudicate the claim advanced as set forth in indented paragraph, number (4) below. If current disablement of the Veteran's right knee is indicated, then afford him a VA medical examination in order to verify its existence and its relationship to service and/or service-connected disabilities of the low back and left knee. The Veteran's VA claims folder in its entirety should be provided to the VA examiner for use in the study of this case and that VA examiner should indicate in writing whether the claims folder was provided and reviewed. That examination should include a complete medical history, clinical evaluation, and any testing deemed necessary by the examiner. All pertinent diagnoses should be set forth and the presence or absence of any right knee disorder should be fully detailed. Upon completion of the above, and only if current disability of the right knee is found to be present, the VA examiner is asked to address the following questions in detail, providing a rationale for each opinion furnished: a) Is it at least as likely as not (50 percent or greater probability) that any right knee disorder of the Veteran originated in service or is otherwise related to his military service? b) Is it at least as likely as not (50 percent or greater probability) that any right knee arthritis was present during the periods immediately following the Veteran's separations from service, and, if so, how and to what degree? c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's service-connected low back and/or left knee disorders either caused or aggravated any indicated right knee disorder. Also, to the extent that it is possible, the examiner should indicate the approximate degree of disability or baseline (e.g., mild, moderate, severe) before the onset of the aggravation. The VA examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of service incurrence, causation, or aggravation as against such matters. More likely and as likely support the contended relationship; less likely weighs against the claim. The VA examiner is further informed that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 5. Lastly, adjudicate/readjudicate the issue of the issue of the Veteran's entitlement to service connection for a right knee disorder, to include as secondary to service-connected disabilities of the low back and left knee. If the benefit sought on appeal continues to be denied, then provide the Veteran with a supplemental statement of the case outlining all pertinent evidence and legal authority, in addition to reasons and bases for the adverse action taken, and afford him a reasonable period in which to respond. The case should then be returned to the Board for further review. No action by the appellant is needed until he is further informed. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs