Citation Nr: 1311959 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 09-48 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a separate evaluation is warranted for neurologic deficit associated with multiple level disc protrusion and compression fractures. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had service from August 1997 to December 2007. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Regional Office (RO). In that rating decision, the RO awarded service connection for multiple level disc protrusion and compression fracture of T6 and T8 with mid-back sensory neuropathy and assigned a 20 percent evaluation from December 15, 2007 and a 10 percent evaluation from March 5, 2008, under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5299-5237. In an April 2011 remand, the Board determined that the issues on appeal were: (1) evaluation of multiple level disc protrusion and compression fracture of T6 and T8, with mid-back sensory neuropathy, rated as 20 percent disabling prior to March 5, 2008; (2) evaluation of multiple level disc protrusion and compression fracture of T6 and T8, with mid-back sensory neuropathy, currently rated 10 percent disabling; and (3) whether a separate evaluation is warranted for neurologic deficits relating to service-connected multiple level disc protrusion and compression fractures. All three issues were remanded for additional development. In a September 2012 rating decision, the RO increased the evaluation for the Veteran's multiple level disc protrusion and compression fracture of T6 and T8 with mid-back sensory neuropathy to 20 percent, effective May 31, 2011. In a December 2012 decision, the Board granted an increase to 20 percent for the Veteran's multiple level disc protrusion and compression fractures of T6 and T8 with mid-back sensory neuropathy from March 5, 2008 to May 30, 2011. No other issue was finally adjudicated in this decision because the Veteran had asserted that he was only seeking a 20 percent rating for his back disability. While the December 2012 Board decision was a final decision with regard to the issue of entitlement to an evaluation in excess of 10 percent for multiple level disc protrusion and compression fractures of T6 and T8 with mid-back sensory neuropathy form March 5, 2008 to May 30, 2011, the Agency of Original Jurisdiction (AOJ) failed, in error, to implement the grant contained in the Board decision. Also in error, the AOJ included this issue in the January 2013 supplemental statement of the case, even though the Board's December 2012 determination was a final decision on this issue. Therefore, this error must be corrected in order to award the Veteran his appropriate evaluation. A review of the Virtual VA file associated with the Veteran shows that all evidence contained therein is duplicative or irrelevant to the issue decided herein. Pursuant to the Board's previous remand, the Veteran was afforded an examination that included nerve conduction studies and also contained an opinion as to whether the Veteran had a definitive nerve disorder of the upper or lower extremities that was related to the service-connected spine disability. As explained more below, the examination and opinion provided are adequate, and the RO has complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for a psychiatric disorder, claimed as secondary to service-connected disabilities has been raised by the record, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Sensory neuropathy of the thoracic spinal nerve roots T5-6 is a neurologic abnormality associated with multiple level disc protrusion and compression fracture. 2. Sensory neuropathy of the thoracic spinal nerve roots T5-6 is no more than mild. CONCLUSION OF LAW The criteria for a separate noncompensable evaluation for sensory neuropathy of the thoracic spinal nerve roots T5-6 are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8518 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development 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). Under the VCAA, 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, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a February 2008 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for service connection. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim in the February 2008 letter. The Veteran's claim is deemed to have arisen from an appeal of the initial evaluation following the grant of service connection for his spine disability. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his 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). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records. The Veteran was also afforded March 2008, June 2011, and January 2013 VA examinations. For the reasons stated below, these examinations, when taken together, are adequate. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim is thus ready to be considered on the merits. II. Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Here, as explained below, a uniform rating is appropriate. As noted above, the Veteran's evaluation for multiple level disc protrusion and compression fracture of T6 and T8 was adjudicated by the Board in December 2012, and is no longer in appellate status. The only issue left on appeal is whether there are any associated neurological abnormalities. Under 38 C.F.R. § 4.124a, Diagnostic Code 8518, incomplete paralysis of the circumflex nerve is rated noncompensable when mild, 10 percent when moderate, and 30 percent when severe. Complete paralysis, where abduction of the arm is impossible, outward rotation is weakened, and muscles supplied are deltoid and teres minor, is rated 50 percent disabled. Diagnostic Code 8618 contemplates neuritis of this nerve, and Diagnostic Code 8718 contemplates neuralgia of this nerve. 38 C.F.R. § 4.123 indicates that neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124 indicates that neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical destruction so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. The Veteran's spine disability is rated under the criteria of the General Rating Formula for Diseases and Injuries of the Spine based upon a showing of abnormal spinal contour, consisting of kyphosis, and a demonstration of limitation of motion of the thoracolumbar spine to 60 degrees. Note 1 to these rating criteria states that VA is to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. During VA spine examination in March 2008, the Veteran denied any radiation of pain or sensory or motor deficits. A previous neurologic examination had been normal. On examination in March 2008, there were no sensory or motor deficits of the lower extremities. In March 2008, the Veteran underwent VA peripheral nerves examination. Records during service noted that the Veteran complained of numbness and tingling in his right fourth and fifth digits. He was diagnosed at that time with brachial neuritis. However, this was based upon a clinical evaluation by a physician assistant, and no electrical studies were done at that time. He was also diagnosed as having subacute peripheral neuropathy based on presenting with complaints of numbness involving a patch of skin in the left upper back. He continued to experience numbness of several fingers of the right hand. He also had intermittent symptoms related to the numbness and burning of the left upper back. Sensory examination was normal to light touch, pain and temperature. No definite abnormalities were identified. The remainder of the neurologic examination was also normal. The examiner indicated that the Veteran had an upper extremity peripheral nerve syndrome of unclear localization. It was difficult to pin point the cause without electrical studies. The intermittent tingling and numbness of the left upper back was more likely than not related to a thoracic radiculopathy, and it was possible that one of the thoracic nerve roots was affected in the context of the Veteran's history of thoracic vertebral abnormalities and fractures. The examiner recommended that the Veteran be further evaluated with nerve conduction studies. However, subsequent records show that the Veteran cancelled these studies. An October 2008 VA outpatient treatment record shows that the Veteran reported numbness in his back and fingers, which had improved once he stopped working for the Coast Guard. In a November 2009 written statement, the Veteran indicated that his fingers and a patch on his back went numb at times. In June 2011, the Veteran underwent VA examination. He had no significant radicular-type pain in the upper or lower extremities for approximately six months. Prior to this, he did have some right upper extremity burning or hot-type pain that radiated into the ulnar distribution. This has since ceased, but the Veteran is afraid that, if he engages in repetitive behavior, the radicular-type pain would return. He also had some numbness over the left shoulder blade area that was constant. There were no other sensory or motor deficits of either the upper or lower extremities or truncal area. On examination, cranial nerves were within normal limits. Motor examination revealed normal bulk and tone and 5/5 power in all limbs with no pronator drift. Sensory examination revealed subjective T6 related numbness on the left shoulder blade. Otherwise, all other areas of sensation were intact to light touch, pinprick, proprioception, and vibration. Reflexes were 2+ throughout with downgoing toes. Coordination examination revealed normal rapid alternative finger movements, finger-to-nose, and heel-to-shin. The Veteran had no radicular signs on examination except for the sensory abnormality, which was subjective. The assessment was radicular symptoms or sensory loss in the T6 distribution of the left shoulder blade, and perhaps radicular symptoms radiating to the right upper extremity after engaging in repetitive motion or sustained motion or activity. In January 2013, the Veteran underwent VA examination. The diagnosis was sensory neuropathy of the thoracic spinal nerve roots T5-6. His service and prior VA medical records were reviewed. He described numbness over the left shoulder blade area, but there were no other sensorimotor deficits in the upper or lower extremities. Pain did not radiate to the upper or lower extremities. He used to have occasional paresthesias of the right hand and forearm, but those symptoms were currently very minimal if any. He had decreased sensation over the medial part of the left scapula since the original injury in service. There were no symptoms associated with the extremities. The only symptom noted was numbness over the medial part of the left scapula area and paresthesias in the area without any motor weakness. Muscle strength testing was normal for all muscles, and there was no atrophy. Reflex examination was normal for all reflexes. Sensory examination was entirely normal, with the exception of decreased sensation over the medial part of the left scapular area. All nerves were normal, and no incomplete or complete paralysis was found of any nerve. The Veteran's peripheral nerve condition did not impact his ability to work. The examiner remarked that there was no evidence of nerve involvement of the upper or lower extremities, and the Veteran does not make a claim that there is. The decreased sensation over the left scapula area is without motor weakness or atrophy. This sensory impairment and associated paresthesias were most likely due to compression neuropathy of the thoracic nerve roots at T5-6 level. The examiner further reiterated that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury and repeated the same rationale and previously provided. Based on the January 2013 VA examination report, the Board finds that a separate rating for sensory neuropathy of the thoracic spinal nerve roots T5-6 is warranted, since it is an associated objective neurologic abnormality of the service-connected thoracic spine disability. While the thoracic spine disability is currently characterized as including numbness of the mid-back, the Board finds that this is an improper implementation of the General Rating Formula for Diseases and Injuries of the Spine. Since this is an associated neurological abnormality, the Board finds that it should be assigned a separate rating. To this extent, the claim is granted. With regard to which rating should be assigned, the Board finds that the Veteran's neuropathy is no worse than mild. The symptoms are wholly sensory, and the January 2013 examination report, which is the only report that contains nerve conduction studies, found that there was no complete or incomplete paralysis of the Veteran's circumflex nerve or any other nerve. This is the most probative evidence of record, as it contains full testing of all of the Veteran's nerves. Nevertheless, the Veteran has never reported more than symptoms of numbness and tingling over his right shoulder blade. The symptoms reported in the January 2013 VA examination report are the same as the Veteran has described since the beginning of the appeal period. There is no lay or medical evidence that the Veteran's sensory neuropathy of the thoracic spinal nerve roots T5-6 causes functional impairment of any movement of the Veteran's thoracic spine, back, or upper extremities. There is no muscle atrophy or any objective manifestations of the sensory neuropathy of the Veteran's back and shoulder blade. The Veteran has not asserted that there is any impairment other than numbness of this portion of his back. As such, no more than a mild disability is demonstrated, and a noncompensable evaluation is assigned under Diagnostic Code 8518. While the Veteran has complained of a past history of numbness in some of the fingers of his right hand, the evidence shows that a diagnosed disability, while it may have existed during service, has not been present since the beginning of the appeal period. All testing with regard to the nerves of the right hand has been negative, and the Veteran has reported, at most, that his fingers were numb at times. In most reports, the Veteran indicated that, while this symptom was present during service, since he left the Coast Guard, it had been minimal, if present at all. Therefore, the Board concludes that the evidence preponderates against a finding that a neurological disorder other than sensory neuropathy of the thoracic spinal nerve roots T5-6 is present. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). That disability is assigned a separate, noncompensable evaluation. As to consideration of referral for an extraschedular rating for the sensory neuropathy of the thoracic spinal nerve roots T5-6, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's sensory neuropathy are fully contemplated by the applicable rating criteria. The Board has separately rated the neurological disability from the spine disability to take account of the fact that associated neurological abnormalities are to be rated separately from spine disabilities. There is no evidence that the sensory neuropathy of the thoracic spine caused marked interference with employment or any functional impairment. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified 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"). There is also no evidence of frequent hospitalization during the appeal period or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular evaluation for the sensory neuropathy is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the preponderance of the evidence supports a separate noncompensable rating, but not higher, for the Veteran's sensory neuropathy of the thoracic nerve roots T5-6. The benefit-of-the-doubt doctrine is therefore not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER A separate noncompensable evaluation for sensory neuropathy of the thoracic spinal nerve roots T5-6 is granted, subject to the laws and regulations governing the payment of VA benefits. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs