Citation Nr: 1303187 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 08-17 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity. 2. Entitlement to an increased rating for radiculopathy of the left lower extremity, initially evaluated as 10 percent disabling prior to May 11, 2012. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from October 1962 to September 1964. This case initially came before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In correspondence of late November 2012, the Veteran indicated that he was accepting the 40 percent evaluation for service-connected radiculopathy of the left lower extremity assigned in a rating decision dated earlier that same month. The 40 percent was made effective May 11, 2012. Accordingly, the issue of entitlement to a current evaluation in excess of 40 percent for service-connected radiculopathy of the left lower extremity is not currently before the Board. This case was previously before the Board in October 2009, September 2010, and February 2012, on which occasions it was remanded for additional development. The case is now, once more, before the Board for appellate review. FINDINGS OF FACT 1. The Veteran's service-connected radiculopathy of the right lower extremity is currently productive of no more than mild incomplete paralysis of the sciatic nerve. 2. Prior to September 22, 2011, the Veteran's service-connected radiculopathy of the left lower extremity was productive of no more than mild incomplete paralysis of the sciatic nerve. 3. From September 22, 2011, the Veteran's service-connected radiculopathy of the left lower extremity has been productive of moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. § 4.124a and Part 4, Diagnostic Code 8520 (2011). 2. The criteria for an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity prior to September 22, 2011 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. § 4.124a and Part 4, Diagnostic Code 8520 (2011). 3. The criteria for an evaluation of 40 percent for radiculopathy of the left lower extremity from September 22, 2011 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 4.3, 4.124a, and Part 4, Diagnostic Code 8520 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned for the Veteran's service-connected radiculopathy of the right and left lower extremities, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Moreover, there is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in May 2008, September 2010, August 2011, and February 2012 of the information and evidence needed to substantiate and complete his claims, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claims, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Increased Ratings In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as both VA (including Virtual VA) and private treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims, and what the evidence in the claims file shows, or fails to show, with respect to those claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran in this case seeks increased evaluations for service-connected radiculopathy of the right and left lower extremities. In pertinent part, it is contended that manifestations of those disabilities are more severe than presently evaluated, and productive of a greater degree of impairment than is reflected by the respective schedular evaluations now assigned. Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the Rating Schedule. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2011). Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). While the Board must consider the Veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including 38 C.F.R. § 4.2 [see Schafrath v. Derwinski, 1 Vet. App. 589 (1991)], the degree of impairment resulting from a service-connected disability is a factual determination, with the Board's primary focus in such cases being upon the current severity of the service-connected disability. See Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the Francisco rule does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an award of service connection for the disability in question. Rather, at the time of the initial rating, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Accordingly, the analysis in this decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. See also, Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings are to be based as far as practicable upon the average impairment of earning capacity, with the additional proviso that the Secretary shall, from time to time, readjust the schedular ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321 (2011), an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture, with such related factors as a marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2011). In the present case, in a rating decision of April 2008, the RO granted service connection (and respective 10 percent evaluations) for radiculopathy of the right and left lower extremities. The Veteran voiced his disagreement with the assignment of those 10 percent evaluations, with the result that, in a subsequent rating decision of November 2012, the RO awarded a 40 percent evaluation for service-connected radiculopathy of the left lower extremity, effective from May 11, 2012, the date of a report of a VA electromyographic examination showing moderately severe radiculopathy of the left lower extremity. The current appeal ensued. At the time of a VA neurologic examination in February 2008, the Veteran complained of recurring back pain which occasionally radiated to his left lower extremity. When questioned, the Veteran denied any problems with tingling or numbness. However, he did complain of some problems with weakness in his left lower extremity. According to the Veteran, at times, he experienced intermittent numbness in his left foot. On neurological examination, motor strength in the lower extremities was 5/5, with the exception of left hip flexion and extension of the left lower extremity, where motor strength was 4/5. Left ankle dorsiflexion, plantar flexion, inversion, and eversion were -5/5, while tone and bulk were normal. Knee jerks were 2+, while ankle jerks were 1+ and symmetrical. At the time of examination, plantars were flexor. Sensory evaluation was intact to pinprick and light touch sensation all over. However, the Veteran was unable to heel or toe walk. The diagnosis noted was mild left lumbar radiculopathy, by history. In the opinion of the examiner, the Veteran did exhibit occasional left lumbar radiculopathy symptoms which were mild. On subsequent VA spine examination in March 2008, the Veteran complained of back pain radiating into the bilateral groin, somewhat worse on the left side than the right. According to the Veteran, he experienced weakness in the bilateral lower extremities, in particular, on the left side. When questioned, the Veteran complained that his left leg "gave out" frequently. Additionally noted was a complaint of chronic numbness of the left big toe "for years." On physical examination, muscle strength was 5-/5 in the bilateral lower extremities. Sensation was grossly intact to light touch, and deep tendon reflexes were 1+ in the bilateral knees, though absent at the bilateral ankles. The clinical impression was one of chronic pain in the low back and bilateral lower extremities, likely secondary to lumbar spondylosis and bilateral lumbar radiculopathy. In correspondence of June 2008, the Veteran's private physician wrote that the Veteran walked well on his toes and heels, and that ankle and knee reflexes and extensor muscles were within normal limits. Further noted was that the Veteran exhibited a normal sensory examination of the lower extremities. In correspondence of July 2008, the same private physician who had provided the June 2008 statement indicated that, according to the Veteran, he experienced no radicular symptoms down his lower extremities. Once again, it was noted that the Veteran walked well on his toes and heels, and that ankle and knee reflexes and extensor muscles were within normal limits. According to the Veteran's private physician, there was a normal sensory examination of the Veteran's lower extremities. Moreover, there were normal downgoing toes on Babinski reflexes. Following a VA electromyographic examination in July 2010, it was noted that the study was incomplete. While peroneal neuropathy was initially suggested by decreased side-to-side amplitude, when the anterior tibialis was analyzed, amplitudes were symmetrical. According to the evaluating physician, there was insufficient electrodiagnostic evidence at the time to conclusively determine the origin of the Veteran's weakness. On VA neurologic examination in September 2010, the Veteran complained of weakness in his left lower extremity, as well as numbness and weakness which had become progressively worse over the past two years. Noted at the time of examination was that, while the Veteran had undergone electromyographic testing, he was unable to complete that testing due to pain. Neurological examination showed motor strength in the left lower extremity, specifically, the proximal left iliopsoas and quadriceps, of 4/5. On the left gastrocnemius, tibialis anterior/posterior was 4/5. Left ankle dorsiflexion, plantar flexion, and hallucis longus was 4/5. Left foot inversion/eversion was 4/5, while on the right lower extremity, it was 5/5. While at the time of examination, there was evidence of some erythema and swelling of the left foot, no definite atrophy was present, and muscle tone and bulk were within normal limits. On the left lower extremity, the knee jerk was 1+, while the right knee jerk was 2+. The left ankle jerk was 1+, while the right ankle jerk was 2+. Noted at the time of examination was that the Veteran got up slowly, and walked slowly with a cane. Heel and toe walk were "definite" with the left foot. Sensory evaluation revealed decreased pinprick and light touch at the level of the 4th and 5th lumbar vertebrae on the left foot. The pertinent diagnosis noted was left lumbar radiculopathy. According to the examiner, the Veteran exhibited mild left lower extremity weakness, as well as mild left footdrop and mild weakness of left ankle dorsiflexion and plantar flexion. However, he had more subjective symptoms of left leg and foot weakness. Subjectively, the Veteran exhibited moderately severe weakness, while objectively, he had only mild weakness. In the opinion of the examiner, the Veteran exhibited mild left lower extremity weakness, as well as mild left footdrop and mild sensory motor changes. Moreover, the degree of left leg paralysis and left footdrop was mild. Following an incomplete VA electromyographic evaluation in October 2010, it was noted that current data gathered, as well as other data from a previous study in July 2010, still constituted only a limited study. However, based on the data gathered, there was no evidence of electrodiagnostic evidence of large fiber peripheral polyneuropathy, though lumbosacral radiculopathy could not be ruled out. At the time of a subsequent VA peripheral nerve examination on September 22, 2011, it was noted that the Veteran suffered from peripheral neuropathy, specifically, left lumbar radiculopathy. When questioned, the Veteran gave a history of a prior lumbar laminectomy, with radiculopathy worsening over the course of the past two to three years. The Veteran denied both intermittent and constant pain in his right lower extremity, but, by his own admission, did experience some moderate intermittent and/or constant pain in his left lower extremity. The Veteran denied paresthesias and/or dysesthesias, as well as numbness in his right lower extremity, though he did reportedly experience such problems in his left lower extremity. Tests of muscle strength showed ankle plantar flexion of 5/5 on the right, and 4/5 on the left. Ankle dorsiflexion was 4/5 on the right, and 5/5 on the left. At the time of examination, the Veteran exhibited no muscle atrophy. Reflex examination showed deep tendon reflexes at the right ankle of 2+, and at the left ankle of 1+. Sensory examination was normal in the lower leg/ankle on the right, and decreased on the left. Sensory examination of the foot/toes was once again normal on the right, and decreased on the left. Examination of the right sciatic nerve was described as within normal limits, while the left sciatic nerve reportedly exhibited mild incomplete paralysis. Electromyographic studies reportedly completed in late September 2010 were described as normal for the Veteran's left lower extremity. According to the examiner, the Veteran experienced continued back pain and lumbar radiculopathy which was currently "mild to moderate." Further noted was that the Veteran's current lumbar radiculopathy symptomatology in the left lower extremity was "mild to moderately severe." Following VA electromyographic studies conducted in early May 2012, a VA examiner, on May 11, 2012, indicated that, based on an evaluation, the Veteran exhibited an old left-sided lumbosacral radiculopathy, with a significant drop in amplitude of the left common peroneal nerve. The clinical impression was of moderately severe left lumbar radiculopathy. Pursuant to applicable law and regulation, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve, with the term "incomplete paralysis" indicating a degree of lost or impaired function substantially less than the type pictured for complete paralysis, whether due to varied level of the nerve lesion or to partial regeneration. When involvement is wholly sensory, the evaluation is to be for the mild, or at most, the moderate degree of impairment. A 20 percent evaluation, under those same laws and regulations, requires evidence of moderate incomplete paralysis of the sciatic nerve, while a 40 percent evaluation requires demonstrated evidence of moderately severe incomplete paralysis of that same nerve. See 38 C.F.R. § 4.124a and Part 4, Diagnostic Code 8520 (2011). Based on the aforementioned, it is clear that, at no time during the course of the current appeal has the Veteran's service-connected radiculopathy of the right lower extremity been more than "mild." Moreover, prior to the time of the aforementioned VA examination on September 22, 2011, radiculopathy of the left lower extremity was similarly no more than mild. Significantly, at the time of a VA neurologic examination in February 2008, the Veteran voiced no complaints regarding his right lower extremity, complaining, instead, of various problems, including weakness, in his left lower extremity. Physical examination showed motor strength in the right lower extremity of 5/5, while strength for left hip flexion and extension was 4/5. According to the examiner, the Veteran experienced only occasional mild left lumbar radiculopathy symptomatology. The Board observes that, at the time of a subsequent VA neurologic examination in September 2010, inversion/eversion of the right lower extremity was 5/5, while left foot inversion/eversion was 4/5. According to the examiner, the Veteran exhibited mild left lower extremity weakness and left footdrop, in conjunction with mild sensory motor changes. Significantly, little or no mention was made of impairment of the Veteran's right lower extremity. Not until the time of the aforementioned VA peripheral nerve examination on September 22, 2011 did the Veteran exhibit symptoms of left lower extremity radiculopathy which were arguably "moderately severe." Significantly, at the time of that examination, symptomatology attributable to the Veteran's right lower extremity radiculopathy was no more than "mild." In fact, according to the examiner, examination of the Veteran's sciatic nerve showed no evidence of any paralysis. While it is true that, at the time of that examination, the Veteran was described as exhibiting mild incomplete paralysis of his left lower extremity, at a later point in that same examination, the Veteran's lower extremity radiculopathy was described as "mild to moderate," or, in the case of the Veteran's left lumbar radiculopathy, "mild to moderately severe." Under the circumstances, the Board is of the opinion that, with the resolution of all reasonable doubt in the Veteran's favor, as of September 22, 2011, the Veteran suffered from a moderately severe incomplete paralysis of the left sciatic nerve. This was confirmed on subsequent electromyographic examination in May 2012, which was interpreted as showing moderately severe left lumbar radiculopathy. Based on the aforementioned, the Board is of the opinion that no more than a 10 percent evaluation is warranted for the Veteran's service-connected radiculopathy of the right lower extremity. In like manner, no more than a 10 percent evaluation is warranted for radiculopathy of the left lower extremity prior to September 22, 2011. However, effective the VA examination on that date, the Veteran exhibited what could reasonably be described as moderately severe incomplete paralysis of the left sciatic nerve. Accordingly, a 40 percent evaluation for radiculopathy of the left lower extremity is warranted effective from that date. Finally, based on a review of the entire evidence of record, the Board is of the opinion that the disability picture presented by the Veteran's service-connected radiculopathy of the right and left lower extremities is appropriately contemplated by the Rating Schedule, and that referral for consideration of an extraschedular evaluation is, therefore, not in order. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). (CONTINUED ON NEXT PAGE) ORDER An initial evaluation in excess of 10 percent for service-connected radiculopathy of the right lower extremity is denied. An initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity prior to September 22, 2011 is denied. An evaluation of 40 percent for service-connected radiculopathy of the left lower extremity from September 22, 2011 is granted, subject to those regulations governing the award of compensation benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs