Citation Nr: 1310176 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 07-00 233A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE What evaluation is warranted for the service-connected radiculopathy of the left lower extremity beginning on November 10, 2005 and prior to June 29, 2010? REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1972 and from March 2003 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the RO. In accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), a Veteran's claim for an increased disability evaluation may require a determination as to whether the Veteran is entitled to a total disability rating based on individual unemployability. In a July 2007 rating decision, the RO granted a total evaluation based on individual unemployability by reason of service connected disability, effective on July 24, 006. In January 2010, the Board remanded the issue on appeal for further development. In September 2011, the Board issued a decision that, in pertinent part, denied the claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the Veteran's attorney and VA's Office of General Counsel filed a Joint Motion for Partial Remand that addressed only the issue. In an April 2012 Order, the Court granted the Joint Motion for Partial Remand, vacating the Board's September 2011 decision as to this issue only and remanding the matter to the Board. In the March 2012 Joint Motion for Partial Remand, the parties agreed that the Board failed to address whether the Veteran was entitled to an extraschedular rating for his radiculopathy of the left lower extremity in the context of the claim of entitlement to an evaluation in excess of 10 percent prior to June 29, 2010. The Joint Motion for Partial Remand specifically requested the Court not to disturb the claim of whether an evaluation in excess of 40 percent for radiculopathy of the left lower extremity from June 29, 2010 was warranted. The Board notes that, while the Veteran was represented by an attorney before the Court, the Veteran did not submit a proper appointment to be represented by this attorney before the Board. Therefore, representation by Disabled American Veterans remains in effect. In addition to the claims file, the Veteran has a virtual file. A review of the virtual file reveals that all documents contained therein are not pertinent to the issue before the Board or are duplicative of evidence already contained in the physical claims file. FINDING OF FACT For the period prior to June 29, 2010, the service-connected radiculopathy is not shown to have been manifested by more than mild incomplete paralysis of the left sciatic nerve. CONCLUSION OF LAW The criteria for the assignment of an evaluation in excess of 10 percent for the service-connected radiculopathy of the left lower extremity prior to June 29, 2010, are not met. 38 U.S.C.A.§§ 1155, 5103, 5103A, 5107; 38 C.F.R.§§ 3.159, 3.321(b) (1), 4.1, 4.7, 4.124a including Diagnostic Code 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in correspondence dated in January 2006 of the information and evidence needed to substantiate and complete his claim. Pre-rating notice to regarding how disability evaluations and effective dates are assigned was provided to the Veteran in March 2006. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, providing VA examinations. Further, the Veteran's VA examinations are found to be adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). This matter was previously before the Board in January 2010, when the case was remanded to obtain any outstanding private and/or VA treatment records, and to obtain a VA orthopedic examination. All of the actions sought by the Board have been completed as directed, and the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The June 2010 VA examination is found to be adequate. A May 2011 Supplemental Statement of the Case confirmed and continued the previous denial. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, providing VA examinations. There is no evidence that any VA defect in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, the Veteran has not suggested that such a defect, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Governing Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (staged) ratings may be assigned for different periods of time during the pendency of the appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The service-connected lumbar radiculopathy of the left lower extremity is currently rated under 38 C.F.R. § 4.124a, DC 8520 as paralysis of the sciatic nerve. Paralysis of the sciatic nerve is rated as follows: a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy; and a maximum 80 percent rating is warranted for complete paralysis resulting in the foot dangling and dropping, no possible active movement of muscles below the knee, and weakened or (very rarely) lost flexion of the knee. 38 C.F.R. § 4.124a, DC 8520. The maximum rating that can be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized 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. 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 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. The Board has reviewed all the evidence in the Veteran's claims file. 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 will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background Procedurally, in a March 2006 rating decision, the RO granted service connection for radiculopathy of the left lower extremity and assigned a disability rating of 10 percent. The Veteran appealed the rating decision, and in a May 2011 rating decision, the disability rating for radiculopathy of the left lower extremity was increased to 40 percent disabling, effective on June 29, 2010. The Veteran asserted that his symptoms warranted higher disability evaluation than that already assigned. As noted, the only issue left on appeal is entitlement to a rating in excess of 10 percent for the service-connected radiculopathy of the left lower extremity prior to June 29, 2010. The claims file includes January 2006 VA general and joint examination reports. During his examination, the Veteran's examiner noted that extremities demonstrated normal range of motion and strength. The examiner reported that, in 2004, the Veteran developed the sudden onset of low back pain, stiffness and numbness down the lateral left thigh into the foot. An MRI showed more than one herniated disk with foraminal stenosis. The Veteran complained of lumbar pain with prolonged sitting, which was frequently accompanied by transient bilateral leg numbness laterally down the thigh and leg into all parts of the feet and toes. He reported that his symptoms interfered with his sleep, but not with his activities of daily living. He was employed in civilian law enforcement. On examination, the tendon reflexes were normal and equal. Lower extremity strength and sensory responses were normal, and straight leg testing was negative. The private treatment notes from Dr. M. and Dr. T. dated in February 2006 reported that the Veteran's symptoms were primarily in the left leg and back. It was noted that the Veteran seemed to slowly be getting better. The treatment notes from the same day also noted that the Veteran still experienced radicular symptoms and back weakness. In an April 2006 a lay statement in support of the Veteran's claim, R.L. stated that he had known the Veteran for about three years and, as the years progressed, the his ability to function had rapidly deteriorated. He noted that walking caused him great pain and that he relied heavily on a cane to walk. He stated that, from his observations, the Veteran's disabilities had caused a steady decline in normal functions due to his severe back pain. The April 2006 Naval Hospital treatment records noted that the Veteran denied having any constant pain and was concerned about continued progression of left leg pain and hypesthesias, increased by changes in position and prolonged sitting. Another April 2006 Naval Hospital treatment note reported that the Veteran was limping, but had no numbness of the feet or toes or tingling of the feet. A neurological examination was normal. It was noted that the Veteran's left lower extremity had 4 out of 5 motor strength and decreased sensation along the L4 dermatome on the left side. A diagnosis of intervertebral disc degeneration of the lumbar spine with progressive neurologic dysfunction in the left lower extremity was provided. The claims file contains a May 2006 letter from the Veteran's spouse, S.M., who stated that, physically, the Veteran was unable to perform any activities of physical intimacy due to unbearable pain. He could not stand or sit for periods longer than a few minutes or walk more than short distances. The Veteran's symptoms had changed their quality of life. An August 2006 correspondence from Dr. M.T. stated that the Veteran had been prescribed bed rest for over seventy days in the past twelve months for his disabilities. In a February 2007 private treatment note, Dr. D. B. noted that the Veteran had undergone several back operations, the last of which was in September 2006 and that surgery did not help with numbness in the left L3 vertebrae distribution. The Veteran also complained of burning pain in the lateral aspect of his left foot, which he described as a 10 out of 10 on the pain scale and noted that nothing seemed to help his pain. The examination revealed tenderness over both sacroiliac joints. With bending, extension and rotation, the pain was increased. Lower extremity examination revealed diminished sensation in the medial aspect of the left thigh and leg. There was good muscle strength in the lower extremities, and the reflexes were present and symmetric. An impression of severe and incapacitating pain due to post lumbar laminectomy syndrome was provided. The Veteran was afforded a VA examination in June 2010 in order to determine the present nature and severity of his symptoms. He stated that he had not worked since 2006 because of his back and neck flare ups with sudden turns. He described these flare-ups as happening four to five times a day and lasting for a few seconds. It was noted that the Veteran had had multiple surgeries of the lumbar spine. The Veteran stated that he had pain all day, every day that went down into his left leg and down to the foot with permanent numbness and weakness. Activities of daily living were restricted in that he was unable to lift more than five pounds, twist or turn, or bend backwards. He had flare-ups of pain with any prolonged holding of the position. The Veteran had not had physician-directed bed rest except for post operatively. The examination revealed that bilateral lower extremities had 5 out of 5 motor strength. Deep tendon reflexes were 2+. There were no sensation in the left leg and 1+ sensation in the left ankle. The VA examiner provided an addendum to his examination report stating that the Veteran had moderately severe left lower extremity radiculopathy evidenced by permanent numbness and weakness in the left leg, pain going down the leg, the use of a pump with Gabapentin, decreased deep tendon reflexes and diminished motor strength in the left lower extremity as well as numbness or lack of sensation in the left lower extremity. The VA examiner added that, as there was no demonstrable atrophy or diminished tone, the left leg had less strength than the right that was still 5 out of 5, he would label the severity as moderately severe as opposed to severe. What Evaluation is Warranted for the Service-Connected Radiculopathy of the Left Lower Extremity beginning on November 10, 2005 The Board finds that the evidence prior to the June 2010 VA examination demonstrates that a 10 percent disability rating for radiculopathy of the left lower extremity is appropriate. The evidence from this period reveals mild paralysis of the sciatic nerve. Of note, the Veteran's January 2006 VA examination demonstrated normal lower extremity strength and normal sensory responses, and the April 2006 Naval Hospital treatment notes demonstrated normal neurological examination and left extremity had 4 out of 5 motor strength. Despite an April 2006 diagnosis of progressive neurological dysfunction, objective symptoms of moderate incomplete paralysis or worse were not demonstrated. The Board therefore finds that the objective evidence of record does not allow for a higher rating earlier than the VA examination that was conducted in June 2010. While the 2007 treatment note noted burning pain in the left foot and diminished sensation in the left leg, the examiner found good muscle strength in the lower extremities and equal and active reflexes at that time. To the extent that this treatment note did not show permanent weakness in the left leg, decreased deep tendon reflexes or diminished motor strength in the left lower extremity at a date earlier than the date of the June 2010 VA examination, a basis for the assignment of a rating higher than 10 percent is not established for this earlier period. As noted, the Board will not discuss the evaluation assigned to the Veteran's radiculopathy of the left lower extremity beginning June 29, 2010, because the parties to the Joint Motion specifically asked that this issue not be disturbed, and the Court granted the Joint Motion. Extraschedular Consideration The Board has also considered whether referral for extraschedular consideration is warranted, but finds that it is not. The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If it is determined that this is so, the second step of the inquiry requires a determination of "whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. With respect to the initial inquiry posed by Thun, the Board finds that the Veteran's disability level and symptomatology are adequately described by the established rating criteria. The Veteran did not endorse any symptoms associated with the radiculopathy of the left lower extremity that are outside the purview of the criteria used to rate his disability. While his service-connected disabilities as a whole interfered with his employment, this impact is contemplated in the total compensation rating based on individual unemployability that was assigned as of July 24, 2006. The level of any impact on employment caused by any individual service-connected disabilities is contemplated by the rating assigned for each. The Veteran has endorsed no symptoms associated with the service-connected left lower extremity radiculopathy that are not contemplated by the rating assigned under Diagnostic Code 8520. Therefore, these criteria are adequate to rate this disability. Without evidence reflecting that the service-connected left leg disability picture is so "exceptional or unusual," such that the available criteria for his disabilities are rendered inadequate, further action for referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted. Thun, supra. ORDER An increased evaluation greater than 10 percent beginning on November 10, 2005, and prior to June 29, 2010, for the service-connected radiculopathy of the left lower extremity, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs