Citation Nr: 1310728 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 09-11 830 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from June 1969 to December 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In that decision, the RO denied the Veteran's claim for an increased rating for his service-connected low back pain syndrome at L5-S1 and degenerative arthritis with radiculopathy. During the course of the Veteran's appeal, the agency of original jurisdiction (AOJ) issued a rating decision in March 2012, awarding a separate 20 percent disability rating for left lower extremity radiculopathy. Because the issue of entitlement to a higher rating for left lower extremity radiculopathy remained on appeal but was not addressed by the AOJ in its March 2012 supplemental statement of the case (SSOC), the Board remanded the issue in June 2012 and again in August 2012 for the issuance of an SSOC. The AOJ provided the Veteran with an SSOC in January 2013, in which the AOJ again denied the Veteran's claim. Thus, there has been compliance with the Board's remand . See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDING OF FACT The Veteran's left lower extremity radiculopathy has been manifested by moderate sensory symptoms approximating no worse than moderate incomplete paralysis of the external popliteal nerve. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8521 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Board finds that all notification and development action needed to arrive at a decision on the claim on appeal has been accomplished. In this respect, through a March 2008 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. In addition, the Veteran was provided notice in the March 2008 letter concerning the assignment of rating criteria and effective dates. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the March 2008 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice 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; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned March 2008 notice letter. The Board also points out that there is no indication whatsoever that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. Records of post-service treatment the Veteran has received from VA treatment providers has been associated with the claims file. In addition, the Veteran underwent VA examination in November 2011 and March 2012; reports of those examinations are of record. In that connection, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are collectively adequate, as they are predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran and his representative, and document that the examiners conducted examination of the Veteran and considered the relevant evidence. An explanation of the opinions offered by each examiner was provided. Accordingly, the Board finds that VA's duty to assist with respect to the claim on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has further been given the opportunity to submit evidence, and he has provided written argument in support of his claim. The Veteran has not identified, and the record does not indicate, existing records pertinent to the claim that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, 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 applies 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 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 evaluations. 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, and VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. Evaluations for radiculopathy are assigned based on whether the paralysis of a particular nerve is complete or incomplete. Here, the Veteran has been evaluated for left lower extremity radiculopathy under Diagnostic Code 8521, governing paralysis of the external popliteal nerve (common peroneal). 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3 (2012). Under Diagnostic Code 8521, a 20 percent rating is warranted for moderate incomplete paralysis; a 30 percent rating is warranted for severe incomplete paralysis; and a 40 percent rating is warranted for complete paralysis. Complete paralysis consists of foot drop and slight droop of the first phalanges of all toes; cannot dorsiflex the foot; extension (dorsal flexion) of the proximal phalanges of toes lost; abduction of the foot lost, adduction weakened; and anesthesia covers the entire dorsum of the foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8521. Relevant medical evidence of record consists of VA medical examinations conducted in November 2011 and March 2012. Report of the November 2011 examination reflects that the Veteran was noted to complain of radiating low back pain. The examiner found normal muscle strength in the left lower extremity, with decreased deep tendon reflexes. Sensation to the left lower extremity was found to be normal, but the Veteran complained of mild intermittent pain, paresthesias, and numbness into the left leg and foot. At that time, the examiner concluded that the sciatic nerve was involved on the left but did not specify the severity of the disorder. The Veteran again underwent VA examination in March 2012. Report of that examination reflects that the Veteran complained of numbness and pain in his left leg down to his ankle. He reported moderate constant pain in the left lower extremity, with severe intermittent pain. The Veteran also reported moderate numbness and paresthesia in the left lower extremity. Physical examination revealed normal muscle strength in the left lower extremity, although decreased sensation in the left lower extremity was noted. No deficiency was noted in the external popliteal nerve, although the examiner diagnosed the Veteran with impingement of the neuroforamina at L5/S1 with resultant lumbosacral radiculopathy on the left. Upon review of the evidence, the Board finds that the Veteran's service-connected left lower extremity radiculopathy has resulted in disability approximating no worse than moderate incomplete paralysis of the external popliteal nerve. Because the Veteran is already receiving a 20 percent rating, which rating contemplates moderate impairment for the disability, a higher rating is not warranted. In that connection, the Board notes that there is no evidence that the Veteran experiences severe incomplete paralysis of the left lower extremity. At the Veteran's November 2011 VA examination, he reported only "mild" intermittent pain, paresthesia, and numbness in the left lower extremity. No decreased sensation was noted in the left lower extremity at that time. At the March 2012 VA examination, some decreased sensation in the left lower extremity was noted, although the Veteran was found to have normal strength in the left leg. He reported that he experienced moderate pain, paresthesia, and numbness in the left lower extremity, with severe pain only intermittently. Because the Veteran experienced only mild disability in the left lower extremity in November 2011, and a constant disability of no more than moderate severity in March 2012, the Board therefore concludes that this disability is tantamount to moderate incomplete paralysis of the external popliteal nerve, warranting no more than the 20 percent rating initially assigned under Diagnostic Code 8521. In so finding, the Board acknowledges that the Veteran reported intermittent severe pain in his left lower extremity. However, the Board finds that the preponderance of the evidence supports a finding that the Veteran's left lower extremity radiculopathy is no more than moderate in nature, given that the Veteran himself stated that the symptoms of pain, paresthesia, and numbness in the extremity were no than moderate in nature on a constant basis, with only intermittent flare-ups of severe pain. The above determination is based on consideration of the applicable provisions of VA' s rating schedule. The Board finds that at no time has the disability under consideration been shown to be so exceptional or unusual as to warrant the referral for consideration of any higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). Here, there is an absence of evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), frequent periods of hospitalization, or evidence that the Veteran's service-connected left lower extremity radiculopathy-without consideration of other disabilities-has rendered impractical the application of the regular schedular standards. In addition, the Board notes that the Veteran continues to be gainfully employed. Furthermore, his symptoms are specifically contemplated by the criteria discussed above. Thus, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). It bears emphasis that the schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Thus, based on the record before it, the Board does not find that the medical evidence demonstrates any unusual disability with respect to the claim that is not contemplated by the rating schedule. The very symptoms the Veteran experiences are addressed by the rating schedule. Thun v. Peake, 22 Vet. App. 111 (2008). As a result, the Board concludes that a remand for referral of the rating issue to the VA Central Office for consideration of extra-schedular evaluation is not warranted. For all the foregoing reasons, the Board finds that a disability rating in excess of 20 percent for left lower extremity radiculopathy is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8521 (2012). This is so for the entirety of the claim period. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim for a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs