Citation Nr: 1311988 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 09-13 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for herniated disc at the L5-S1 level with sciatica of the left leg prior to August 27, 2009, and in excess of 40 percent thereafter, to include whether a separate compensable rating for bladder impairment is warranted. 2. Entitlement to a separate compensable rating for left leg radiculopathy prior to December 30, 2008. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from December 1998 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, in which the RO granted service connection and assigned an initial 20 percent rating for herniated disc at the L5-S1 level with sciatica of the left leg, effective September 27, 2005. In a September 2009 rating decision, the RO granted a separate 20 percent rating for left leg radiculopathy, effective December 30, 2008. In a March 2011 rating decision, the RO granted a higher 40 percent rating for herniated disc at the L5-S1 level, effective August 27, 2009. As a higher rating for this disability is assignable before and after this date, and the Veteran is presumed to seek the maximum available benefit, the Board has characterized the appeal as encompassing both matters set forth on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the Virtual VA file reflects no additional records pertinent to the issues on appeal. In a November 2009 Statement of Accredited Representative in Appealed Case (VA Form 646), the Veteran's representative raised an issue of entitlement to service connection for a knee condition. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to increased ratings for the service-connected lumbar spine disability and a separate compensable rating for bladder impairment are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT From September 27, 2005 to December 29, 2008, the Veteran's left leg radiculopathy is comparable to no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, from September 27, 2005 to December 29, 2008, the criteria for a separate 20 percent rating, but no more, for left leg radiculopathy are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The issue of entitlement to a separate compensable rating for left leg radiculopathy prior to December 30, 2008, arises from the Veteran's disagreement with the rating assigned in connection with the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). 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. § 5103A; 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 the Veteran submitted post-service VA and private treatment records. The Veteran was afforded a VA examination for his lumbar spine disability in November 2007. For the reasons discussed below, the evidence is adequate to make a determination on the claim herein decided. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her 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 (2012). 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 rating will be assigned. 38 C.F.R. § 4.7 (2012). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In a November 2007 rating decision, the RO granted service connection and assigned a 20 percent initial rating for herniated disc at the L5-S1 level with sciatica of the left leg, effective September 27, 2005. In a September 2009 rating decision, the RO granted a separate 20 percent rating for left leg radiculopathy, effective December 30, 2008. At issue here is whether the Veteran is entitled to a separate compensable rating for left leg radiculopathy prior to December 30, 2008. As will be discussed below, resolving the benefit of the doubt in the Veteran's favor, the Board finds that a separate 20 percent rating for left leg radiculopathy is warranted from September 27, 2005 to December 29, 2008. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). 38 C.F.R. § 4.71a (2012). As noted under Note (1) of the General Rating Formula, VA must consider whether combining ratings for orthopedic and neurological manifestations would result in a higher rating for the Veteran's service-connected lumbar spine disability. Id. As in this case, neurological manifestations involving lumbar radiculopathy are generally rated under the provisions of 38 C.F.R. § 4.124a, Diagnostic code 8520, for rating the sciatic nerve. Neurological disability is evaluated on the basis of nerve paralysis, partial paralysis, neuritis or neuralgia in proportion to the impairment of motor or sensory function. 38 C.F.R. §§ 4.120-4.124a. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis warrants a 60 percent rating. Complete paralysis of the sciatic nerve warrants a 80 percent rating, but requires that the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The terms 'severe,' 'moderate,' and 'mild' are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are 'equitable and just.' See 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as 'mild' by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6 (2012). The Veteran's service treatment records reflect that he injured his back while lifting something heavy in 2001. After the injury, he complained of recurrent episodes of pain radiating into his legs and numbness in his left foot and toes. The Veteran filed a claim of entitlement to service connection for residuals of a back injury in September 2005. He complained of constant pain, which he treated daily with medication. A January 2007 private magnetic resonance imagining (MRI) report notes that the Veteran had low back pain and radiculopathy. The MRI revealed a large left posterolateral disc extrusion at the L5-S1 level that resulted in moderate compression of the left S1 nerve root. There was also mild posterocentral protrusion of the L4-L5 disc. An August 2007 private treatment record notes the Veteran's complaints of having back difficulties on and off that affected his left leg. He also reported having numbness and tingling in the left foot. He ambulated with a right-sided limp and there was a hint of weakness in the dorsalis pedis on the left as compared to the right. There was also numbness and tingling in the S1 distribution on the left with positive straight leg raising. In an August 2007 letter, Dr. Marquart, a private physician, stated that the Veteran worked as a mechanic and had left leg pain down into his foot and tingling in his calf. On physical examination, he had positive straight leg raising and mildly diminished ankle reflex on the left. It was also noted that the MRI quite obviously showed a fairly significant herniated disc on the left at the L5-S1 level. Surgical options were discussed. The report of a November 2007 VA spine examination reflects the Veteran's complaints of radiating pain into his left leg, which was described as sharp and shooting. On motor examination, hip flexion and extension, knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension were 3/5 on the left (active movement against gravity) and 5/5 on the right (active movement against full resistence). Muscle tone was normal; there was no atrophy. On sensory examination of the lower extremities, vibration was 0/2 on the left (absent) and 2/2 on the right (normal). Pinprick was 1/2 on the left (impaired) and 2/2 on the right. Light touch was 0/2 on the left and 2/2 on the right. Position sense was 1/2 on the left and 2/2 on the right. The examiner noted that the Veteran had stocking pattern on the foot. On detailed reflex examination, knee jerk was 1+ on the left (hypoactive) and 2+ on the right (normal). Ankle jerk was 1+ on the left and 2+ on the right. The examiner noted that the Veteran had significant pain with signs of radiculopathy and neuropathy in his left leg. It was noted that the Veteran was employed full time as a mechanic, but was finding it more difficult to maintain his work and activity levels due to the pain and increased weakness in his left leg. In this case, the Board finds that the preponderance of the evidence indicates that the Veteran has had left leg radiculopathy since September 27, 2005. His service treatment records note that he had pain radiating into his left leg and numbness in the left ankle and foot, which is consistent the post service findings in August 2007 and November 2007. In this regard, the August 2007 private medical records indicate that he walked with a limp and had numbness and tingling in an S1 distribution. Furthermore, the clinical findings were corroborated by the January 2007 MRI that showed "moderate" compression of the S1 nerve root. The November 2007 VA examination revealed weakness on the left side, diminished sensation, and impaired reflexes. Based on this evidence, the Board finds that the left leg radiculopathy most closely approximates a 20 percent rating under Diagnostic Code 8520 for moderate incomplete paralysis prior to December 30, 2008. The Board finds that a rating in excess of 20 percent for left leg radiculopathy is not warranted because the medical evidence does note show that the Veteran's left leg radiculopathy was more than moderate in nature. The January 2007 MRI noted "moderate" compression. The August 2007 private treatment record indicated only a hint of weakness in the dorsalis pedis on the left side. In August 2007, Dr. Marquart described ankle reflex on the left as only mildly diminished. During the November 2007 VA examination, although weakness was noted in the left lower extremity, he had active movement against gravity and normal muscle tone. Position sense and pinprick sensation were impaired, but not absent. Reflexes were hypoactive, but not absent. As such, the overall record does not support the assignment of the next higher, 40 percent rating under Diagnostic Code 8520, which requires moderately severe incomplete paralysis. See 38 C.F.R. § 4.121a, Diagnostic Code 8520. In reaching this decision, the Board considered the Veteran's lay statements. The Veteran is competent to report his observations with regard to the severity of his left leg radiculopathy, including reports of radiating pain, weakness, tingling, and numbness. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also finds his statements to be credible and consistent with the separate rating assigned. To the extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the Board finds the specific examination findings of trained health care professionals to be of greater probative weight than the Veteran's more general lay assertions. As to consideration of referral for an extraschedular rating, 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 left leg radicular symptoms described by the Veteran are contemplated by the applicable rating criteria. Partial paralysis is broad enough to encompass functional limitation due to weakness, decreased reflexes, and loss of sensation. Furthermore, pain is contemplated in the General Rating Criteria for Diseases and Injuries of the Spine whether or not it radiates. The evidence also does not reflect that there was marked interference with employment or frequent hospitalization prior to December 30, 2008. At the November 2007 VA examination, it was noted that the Veteran's employment was impacted by his service-connected lumbar spine disability, to include sciatica, but he continued to work full time. Moreover, the Veteran has not alleged with any specificity that his left leg radiculopathy caused marked interference with employment during this time period. The Board finds that the degree of impairment in this case does not rise to the level that application of the regular schedular standards are impractical. Therefore, referral for consideration of an extraschedular rating for left leg radiculopathy prior to December 30, 2008 is not warranted. 38 C.F.R. § 3.321(b)(1) The Board acknowledges that in the recent case of Johnson v. Shinseki, the Court found that VA's disability-by-disability interpretation of 38 C.F.R. § 3.321(b)(1) was consistent with its statutory and regulatory scheme. __Vet. App. __, No. 10-1785, 2013 WL 1224810, *6 (Vet. App. March 27, 2013). However, even if the Board considers the Veteran's combined symptomatology resulting from his service-connected disabilities prior to December 30, 2008 (i.e., herniated disc at the L5-S1 level and left leg radiculopathy), there is no evidence of marked interference with employment or frequent hospitalization. Hence, referral for consideration of an extraschedular rating would not be warranted even on a combined basis. The Board has also considered the Court's decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In Rice, the Court held that a claim for total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. Here, however, a TDIU was granted in a March 2011 rating decision, which the Veteran did not appeal. Hence, the Board does not find that a claim of entitlement to a TDIU to be a component of the current appeal. In this case, the Board concludes that a separate 20 percent rating is warranted for left leg radiculopathy from September 27, 2005 to December 29, 2008. In reaching this decision, the Board has favorably applied the benefit-of-the-doubt doctrine; however, the Board finds that the preponderance is against assignment of any higher rating. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER From September 27, 2005 to December 29, 2008, a separate 20 percent rating for left leg radiculopathy is granted, subject to the legal authority governing the payment of compensation benefits. REMAND The Board finds that additional action is needed on the remaining claims on appeal. Specifically, the RO/AMC must ensure that all records of VA treatment and evaluation have been obtained and schedule the Veteran for a VA examination to assess the nature of any bladder impairment associated with his service-connected lumbar spine disability. In April and May 2009, the Veteran submitted VA treatment records from the Grand Rapids VA outpatient clinic dated from August 2007 to April 2009. These treatment records suggest that the Veteran gets regular ongoing treatment at that facility; however, it does not appear that the RO ever requested his full records. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As previously noted, Note 1 of The General Rating Formula for Diseases and Injuries of the Spine provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. During the August 2009 and April 2010 VA examinations, the Veteran reported experiencing urinary incontinence and frequency. The examiners indicated that these symptoms were not "unrelated" to the claimed lumbar spine disability. Based on the foregoing, the Board finds that a VA urological examination would be helpful in clarifying the nature and etiology of the Veteran's urinary complaints. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all outstanding records of VA evaluation and/or treatment for the Veteran's lumbar spine disability, to include any associated neurological impairment. All records/responses received should be associated with the claims file. 2. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO/AMC should schedule the Veteran for a VA urological examination to assess the nature and etiology of any bladder impairment. The examiner should address the Veteran's complaints of urinary incontinence and frequency. For each disorder diagnosed, the examiner should clarify whether it is at least as likely as not (at least 50 percent likely) due to the Veteran's service-connected herniated disc at the L5-S1 level. The examiner should provide a complete rationale for all of the opinions expressed in his or her report. If the examiner is unable to provide one or more of the requested opinions, than he or she should explain why this is the case. 3. After completing any additional development deemed necessary, readjudicate the claims remaining on appeal. (If records obtained pursuant to paragraph #1 above suggests further examination of the back is indicated, such examination should be undertaken.) If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case, which addresses all of the evidence obtained after the issuance of the Statement of the Case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs