Citation Nr: 1300394 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 08-34 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an initial increased rating for right leg radiculopathy, rated as 10 percent disabling prior to August 21, 2008, and 30 percent disabling thereafter. 2. Entitlement to an initial increased rating for left leg radiculopathy, rated as 10 percent disabling prior to August 21, 2008, 30 percent disabling between August 21, 2008 and September 26, 2011, and 40 percent disabling thereafter. 3. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for melanoma, to include as due to herbicide exposure. 4. Entitlement to special monthly compensation (SMC) on account of being housebound. REPRESENTATION Appellant represented by: Darla J. Lilley, Attorney ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2007, July 2010, and August 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The claims for entitlement to increased ratings for radiculopathy of the lower extremities were previously before the Board in June 2010 when they were remanded for additional action by the originating agency. The case has now returned to the Board for further appellate action along with the other issues on appeal. In a June 2011 statement, the Veteran filed a claim for entitlement to service connection for a disability manifested by chronic pain, to include as secondary to service-connected posttraumatic stress disorder (PTSD). This issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for SMC is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to August 21, 2008, the Veteran's right leg radiculopathy manifested incomplete paralysis that was no more than mild. 2. For the period beginning August 21, 2008, the Veteran's right leg radiculopathy manifested no more than severe incomplete paralysis. 3. For the period prior to August 21, 2008, the Veteran's left leg radiculopathy manifested incomplete paralysis that was no more than mild. 4. For the period between August 21, 2008 and June 16, 2011, the Veteran's left leg radiculopathy manifested no more than severe incomplete paralysis. 5. For the period beginning June 16, 2011, the Veteran's left leg radiculopathy manifested complete paralysis of the common peroneal nerve. 6. The claim for service connection for melanoma, characterized as skin cancer, was initially denied in an August 1994 rating decision. 7. The evidence received since the August 1994 rating decision is cumulative and redundant of other evidence of record and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. For the period prior to August 21, 2008, the criteria for an initial rating in excess of 10 percent for radiculopathy of the right leg are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8520, 8521 (2012). 2. For the period beginning August 21, 2008, the criteria for a rating in excess of 30 percent for radiculopathy of the right leg are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8520, 8521. 3. For the period prior to August 21, 2008, the criteria for an initial rating in excess of 10 percent for radiculopathy of the left leg are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8520, 8521. 4. For the period between August 21, 2008 and June 16, 2011, the criteria for a rating in excess of 30 percent for radiculopathy of the left leg are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8520, 8521. 5. For the period beginning June 16, 2011, the criteria for a rating in excess of 40 percent for radiculopathy of the left leg are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8520, 8521. 6. New and material evidence has not been received to reopen service connection for melanoma. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Compensation for radiculopathy of the right and left legs was awarded under 38 U.S.C.A. § 1151 (West 2002) in the September 2007 rating decision on appeal. Initial 10 percent evaluations were assigned for each lower extremity effective September 26, 2003. In a February 2011 rating decision, increased 30 percent evaluations were assigned for each leg effective August 21, 2008, and a 40 percent evaluation was assigned to the left leg in a June 2012 rating decision effective September 26, 2011. The Veteran contends that increased ratings are appropriate for his bilateral radiculopathy as he experiences severe impairment to both legs. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's bilateral lower extremity radiculopathy is currently rated under Diagnostic Code 8521 pertaining to paralysis of the external popliteal nerve (common peroneal). Under this diagnostic code, mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the external popliteal nerve, foot drop and slight drop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2012). 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. During the period prior to August 21, 2008, the Veteran's right and left radiculopathy were both rated as 10 percent disabling. The right leg was initially rated under Diagnostic Code 8520 pertaining to impairment of the sciatic nerve which also provides a 10 percent rating for mild incomplete paralysis, a 20 percent rating for moderate incomplete paralysis, and a 30 percent rating for moderately-severe incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board finds that an increased rating is not warranted for either lower extremity during this period as the competent evidence does not establish impairment of any nerve that is more than mild. During an April 2003 pain services consultation at the White River Junction VA Medical Center (VAMC), the Veteran complained of severe pain radiating down both legs, but examination showed bilateral intact sensation and full strength. In September 2005, the Veteran manifested some decreased sensation to pinprick on the left side, but the examining VA neurologist found that his symptoms were unchanged from previous examinations. The Board finds that the 10 percent evaluations assigned during the period prior to August 21, 2008 contemplate the Veteran's complaints of radiating pain with some mild loss of sensation. Increased ratings are therefore not warranted during this period under Diagnostic Codes 8520, 8521, or the any other criteria pertaining to impairment of the lower extremity nerves. For the period beginning August 21, 2008, the Veteran's radiculopathy of both legs is rated as 30 percent disabling. With respect to the right leg, the 30 percent evaluation is continued throughout the rest of the claims period and was assigned under Diagnostic Code 8521 pertaining to the common peroneal nerve. The Board finds that a rating in excess of 30 percent is not warranted for the right lower extremity at any time during the period beginning August 21, 2008. Upon VA examination in August 2008, the Veteran complained of severe radiating pain in the right leg and sensation and vibratory sense were decreased. The Veteran also had marked atrophy of the quadriceps with poor strength. The right leg was again examined by VA in September 2011 VA, but showed some improvement with only moderate pain and moderate numbness. The Veteran again demonstrated decreased deep tendon reflexes and sensation, but the examiner concluded that the all the lower extremity nerves were normal. The findings of the August 2008 and September 2011 VA examinations clearly demonstrate worsening symptoms compared to testing during the earlier appeals period, but these manifestation of the disability are contemplated by the current 30 percent evaluation associated with severe incomplete paralysis of the right lower extremity. There is no evidence of symptoms associated with complete paralysis of nerves of the right leg such as foot drop or an inability to extend or abduct the foot or toes. The Veteran also stated in a June 2011 statement that the pain and weakness in his right leg was not as severe as the left leg. An increased rating is thus not warranted under Diagnostic Code 8521 or the other criteria pertaining to neurological impairment of the right leg at any time during the period beginning August 21, 2008. Turning to the Veteran's left leg, it is currently rated as 30 percent disabling under Diagnostic Code 8521 for the period between August 21, 2008 and September 26, 2011. Upon VA examination in August 2008, the left lower extremity demonstrated barely discernible sensation to light touch and similarly limited vibratory sense. There was poor strength in the left leg and the examiner noted that the Veteran could not walk unaided without a cane. As with the right leg, these findings are indicative of severe incomplete paralysis of the left lower extremity, but do not support a finding of complete paralysis. The examiner did not note the presence of any foot drop and there was no indication that the Veteran could not extend or abduct the foot or toes. A rating in excess of 30 percent is therefore not warranted. A maximum rating of 40 percent under Diagnostic Code 8521 is in effect for the left lower extremity from September 26, 2011. The Board finds that the 40 percent rating should be assigned from June 16, 2011-the date VA received a statement from the Veteran reporting that his disability had worsened. In June 2011, the Veteran contended that his left leg disability had increased in severity with a complete loss of sensation, very limited motion, and no support for walking or standing. The Veteran also reported that he experienced left foot drop. These subjective complaints were verified by the September 2011 VA examiner who noted the Veteran's left leg was locked in extension when walking with complete paralysis of the common peroneal nerve. There was almost no left ankle dorsiflexion and absent sensation of the foot and toes. A maximum 40 percent evaluation is therefore warranted under Diagnostic Code 8521 for the period beginning June 16, 2011. The Board has considered whether a rating in excess of 40 percent is warranted for the left leg under any other criteria for rating neurological impairment of the lower extremities. A 60 percent evaluation is possible under Diagnostic Code 8520 for severe impairment of the sciatic nerve, but the September 2011 VA examiner specifically found that the Veteran manifested only moderately severe incomplete paralysis of this nerve. This level of impairment is also associated with a 40 percent evaluation under Diagnostic Code 8520. None of the other criteria for rating neurological impairment of the lower extremities provide for a rating in excess of 40 percent. Therefore, the Veteran is currently in receipt of the highest rating possible for his left leg radiculopathy. The Board has considered whether there is any other schedular basis for granting a higher rating for either of the lower extremities disabilities, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claims for increased ratings other than that granted above. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's bilateral lower extremity radiculopathy is manifested by symptoms such as pain, loss of sensation, and motor deficits. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular rating is not warranted. The Court has also held that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id at 454. The Veteran has contended that his radiculopathy of the lower extremities prevents him from working. The September 2011 VA examiner also identified significant effects on the Veteran's employability associated with his radiculopathy. Typically in these circumstances, the Board would find that a veteran had raised the issue of entitlement to TDIU; however, a TDIU rating contemplates a schedular rating that is less than total. 38 C.F.R. § 4.16(a). Since the Veteran is in receipt of a 100 percent rating for his psychiatric disability on a schedular basis; and, as the total rating has been made effective for the entire period encompassing the newly raised TDIU claim, the claim for a TDIU is rendered moot. See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994) ("claim for TDIU presupposes that the rating for the condition is less than 100 percent"). Claim to Reopen The Veteran's claim for entitlement to service connection for melanoma was initially denied in an August 1994 rating decision. The RO characterized the disability as skin cancer and found that there was no evidence linking the condition to herbicide exposure or any other incident of active service. The Veteran initiated an appeal with respect to the denial of the claim, but later withdrew the appeal. The August 1994 rating decision is therefore final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The evidence received since the August 1994 rating decision includes records of treatment for various dermatological disabilities at the White River Junction VAMC. However, there have been no additional findings of melanoma and the Veteran's dermatologists have only noted a history of the condition with no recurrences. This evidence is new, as it was not of record at the time of the August 1994 rating decision, but it is not material as it does not relate to an unestablished fact necessary to substantiate the claim. The records merely document ongoing treatment for skin conditions with no recurrences of melanoma. The new treatment records therefore pertain to the presence of a current disability, an element of service connection that was already established at the time of the prior denial of the claim. The treatment records do not provide any competent medical evidence of a link between the Veteran's melanoma and active duty service. In addition, the statements provided by the Veteran in support of his claim are cumulative and redundant of the contentions at the time of the previous denial of service connection and cannot constitute new and material evidence. Thus, the Board finds that new and material evidence has not been submitted to allow for reopening of the claim. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran has initiated an appeal regarding the initial disability ratings assigned following an award of compensation under 38 U.S.C.A. § 1151 (West 2002). The claims for compensation for the disabilities on appeal are now substantiated and the filing of a notice of disagreement as to the September 2007 rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2011). Rather, the Veteran's appeal as to the initial rating assignments triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case (SOC) if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. The February 2011 SOC, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic code for rating the disabilities at issue, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluations that the RO assigned. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve a higher rating for the disabilities at issue. Regarding the claim to reopen service connection for melanoma, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a July 2012 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the July 2012 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the context of claims to reopen, the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In the July 2012 VCAA letter, the Veteran was provided notice of the criteria necessary for reopening the previously denied claim for service connection for melanoma. In addition, he was informed of the reason for the prior denial of service connection. VA has therefore substantially fulfilled its specific duties to notify with regard the claim to reopen. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and records of VA treatment. The Veteran has not identified any private health care providers who have treated the disabilities on appeal. Additionally, the Veteran was provided a proper VA examination in response to his claims for increased ratings. While a VA medical opinion has not been obtained in connection with the claim to reopen, VA has no duty to obtain medical examination or opinion because new and material evidence has not been received to reopen the claim. 38 C.F.R. § 3.159(c)(4)(iii) (2012). The Board also finds that VA has complied with the June 2010 remand orders of the Board. In response to the Board's remand, VA issued a SOC addressing the issues of increased ratings for bilateral radiculopathy of the lower extremities in February 2011. The Veteran perfected the appeal, was provided a VA examination in September 2011, and the claims were readjudicated in June 2012. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to an initial rating in excess of 10 percent for right leg radiculopathy for the period prior to August 21, 2008 is denied. Entitlement to a rating in excess of 30 percent for right leg radiculopathy for the period beginning August 21, 2008 is denied. Entitlement to an initial rating in excess of 10 percent for left leg radiculopathy for the period prior to August 21, 2008 is denied. Entitlement to a rating in excess of 30 percent for left leg radiculopathy for the period between August 21, 2008 and June 16, 2011 is denied. Entitlement to a rating in excess of 40 percent for left leg radiculopathy for the period beginning June 16, 2011 is granted. New and material evidence having not been submitted, reopening of the claim for entitlement to service connection for melanoma is denied. REMAND The Board finds that the Veteran's claim for entitlement to SMC on account of being housebound is inextricably intertwined with the newly raised claim for entitlement to service connection for a disability manifested by chronic pain, to include as secondary to service-connected PTSD. As such, it is remanded to allow for development of the pending service connection claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Send the Veteran a letter that complies with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) including notice regarding entitlement to SMC on account of being housebound. 2. Then, after appropriate development has been completed, readjudicate the new claim for entitlement to service connection for a disability manifested by chronic pain. After allowing the Veteran time to respond, readjudicate the claim for SMC currently on appeal. If the benefits sought on appeal are not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ N. Rippel Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs