Citation Nr: 1301765 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-28 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for lumbosacral radiculopathy of the left lower extremity. REPRESENTATION Appellant represented by: Sean P. Sullivan, Attorney at Law ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty in the Navy from May 1971 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran perfected an appeal of the denial of his claim for an increased evaluation for his service-connected back disability, but later (in a statement received at the RO in March 2011) withdrew this issue from appellate review. Furthermore, in March 2009, the RO granted service connection for right ear hearing loss and assigned a noncompensable evaluation, effective September 16, 2008. The Veteran filed a timely Notice of Disagreement (NOD), but later (in a statement received at the RO in November 2011) withdrew his NOD. Accordingly, these claims are not in appellate status at this time. The Veteran requested a Board hearing on his July 2010 VA Form 9, but later withdrew this request in July 2011. The Veteran having withdrawn his hearing request, the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (e)(2012). In July 2011, the Veteran, through his representative, submitted additional evidence in the form of lay statements and VA treatment records along with a waiver of consideration of such evidence by the agency of original jurisdiction (AOJ). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND The Veteran is seeking an initial evaluation in excess of 10 percent for his service-connected lumbosacral radiculopathy of the left lower extremity. He has been rated under Diagnostic Code (DC) 8520 for paralysis of the sciatic nerve. Under this code, an evaluation of 10 percent is for mild incomplete paralysis. A 20 percent rating requires moderate incomplete paralysis, and a 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. The next higher evaluation of 60 percent requires severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent evaluation requires complete paralysis of the sciatic nerve, in which 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. § 4.124(a), DC 8520. The words "mild," "moderate," "moderately severe," 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 (2012). Although the word "moderate" is not defined in VA regulations, "moderate" is generally defined as "of average or medium quality, amount, scope, range, etc." See Webster's New World Dictionary, Third College Edition (1988), 871. The term "incomplete paralysis" 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 the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, DCs 8510-8730 (2012). The Veteran, through his representative, contends his service-connected left leg disability warrants a 40 percent evaluation under DC 8520. See July 2010 VA Form 9. Unfortunately, there is very little in the claims file which adequately describes the current nature and extent of this disability. Review of the claims folder reveals that the Veteran has not been afforded an appropriate examination since October 2008, four years ago. Once VA undertakes the effort to provide an examination it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, to ensure that the record reflects the current severity of this condition, a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to evaluate properly the service-connected disability under consideration. The Board notes that the record on appeal demonstrates that, in addition to the Veteran's service-connected lumbosacral radiculopathy of the left lower extremity, he has been diagnosed with severe hammertoe condition and a moderately severe bunion on his left foot. However, service-connection has not been established for these disorders. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181 (1998) (per curiam); 38 C.F.R. § 3.102 (2012). Therefore, the VA opinion must differentiate between any left foot symptomatology attributed to the Veteran's service-connected lumbosacral radiculopathy of the left lower extremity as opposed to any symptomatology associated with a nonservice-connected left foot disability. In addition, the claims file indicates that the Veteran receives disability benefits from the Social Security Administration (SSA). Those records are not of record. The duty to assist extends to obtaining SSA records where they are relevant to the issue under consideration. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following action: 1. Obtain from the SSA a copy of the decision awarding disability benefits to the Veteran and a copy of the medical records relied upon concerning that claim. 2. Schedule the Veteran for a VA examination to evaluate the current severity his service-connected lumbosacral radiculopathy of the left lower extremity. The claims file, to include a copy of this remand, must be provided to and reviewed by the VA examiner in conjunction with the examination. All necessary diagnostic studies must be conducted. The examiner should discuss any associated neurological manifestations indicating whether or not the Veteran's symptoms of pain, numbness, loss of sensation, and tingling are productive of (i) mild incomplete paralysis; (ii) moderate incomplete paralysis; (iii) moderately severe incomplete paralysis; (iv) severe incomplete paralysis with marked atrophy; or, (v) complete paralysis with foot dangles and drops, no active movement of the muscles below the knee, and weakened or lost flexion of the knee. All pertinent pathology associated with the Veteran's service-connected left leg disability - to include any instability, pain, limitation of motion (including after initial and repetitive movement) - should be annotated in the examination report. The examiner should also identify all symptomatology that is due to the Veteran's service-connected lumbosacral radiculopathy of the left lower extremity, differentiating it from that which is due to any nonservice-connected left foot or other disorder that may be diagnosed. Finally, the examiner should opine as to whether it is at least as likely as not the Veteran's lumbosacral radiculopathy of the left lower extremity alone, without consideration of any nonservice-connected disabilities or the Veteran's age, renders him unable to secure or follow a substantially gainful occupation, taking into account his education and employment background. All opinions and conclusions expressed must be supported by a complete rationale. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).