Citation Nr: 1317200 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-34 163 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for the right lower extremity reflex sympathetic dystrophy, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1958 to July 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the March 2009 rating action in which the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia denied a disability evaluation greater than 40 percent for the service-connected right lower extremity reflex sympathetic dystrophy. While the rating decision was issued from the Huntington RO, the Veteran currently resides in Virginia. Accordingly, the jurisdiction of his appeal remains with the RO in Roanoke, Virginia. The Board notes that the Veteran requested a hearing before a Veterans Law Judge at the RO. A Board hearing was scheduled in August 2012, but the Veteran failed to appear. As such, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (if an appellant fails to appear for a scheduled hearing, the case will be processed as though the request for a hearing had been withdrawn). In October 2012, the Board remanded the Veteran's increased rating claim for further procedural and evidentiary development. Specifically, the Board requested that the RO (1) obtain the Veteran's outstanding treatment records from the VA medical center (VAMC) in Salem Virginia; and (2) schedule the Veteran for a VA examination to determine the severity of his service-connected reflex sympathetic dystrophy of the right lower extremity. In December 2012, the Appeals Management Center (AMC) initiated a request to have the Veteran scheduled for VA examinations of his neurological disorder. The examination was completed in December 2012, and copies of the VA examination report as well as the Veteran's updated VA treatment records have been associated with the claims file. The AMC subsequently readjudicated the claim in the March 2013 Supplemental Statement of the case (SSOC). Thus, the agency of original jurisdiction (AOJ) has complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (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 Throughout the appeal, the Veteran's reflex sympathetic dystrophy of the right lower extremity has been manifested by incomplete paralysis that is moderately severe; severe incomplete paralysis with marked muscular atrophy has not been shown. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 40 percent for reflex sympathetic dystrophy of the right lower left extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.124(a), Diagnostic Codes 8520 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of this 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, a 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). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, during the pendency of the appeal. See 73 Fed. Reg. 23353 -56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) In this case, the Board finds that all notification and development action needed to arrive at a decision on the claims on appeal has been accomplished. Through the January 2009 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 concerning the assignment of rating criteria and effective dates via the January 2009 letter. 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 January 2009 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) (to be 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 notice letter. The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Veteran was given the opportunity to respond following the January 2009 notice letter. Nothing about the evidence or any response to the RO's notification suggests that the rating issue must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's service treatment records as well as his post-service VA medical records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. Significantly, neither the Veteran, nor his representative, has otherwise alleged that there are any outstanding medical records probative of his claim on appeal that need to be obtained. In addition, the Veteran was also provided the opportunity to testify before the Board in August 2012, but he withdrew that request. The duty to assist also includes obtaining a medical examination/opinion when such is necessary to make a decision on the claim, as defined by law. VA examinations were obtained in January 2009 and December 2012. 38 C.F.R. § 3.159(c)(4). To that end, 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). The Board finds that the VA examinations obtained in this case are adequate, as they were predicated on a review of the Veteran's medical records, an interview of the Veteran and a discussion of his medical history, and the examinations fully address the rating criteria that are relevant to rating the disability at issue. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). In this regard, the Board acknowledges that it is unclear whether the Veteran's claims file was available for review during either VA examination. However, the Board observes that review of the claims file is only required where necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings and conclusions; necessity for pre-examination records review is to be determined according to the facts of each individual case. See VAOPGCPREC 20-95; 61 Fed. Reg. 10,064 (1996). Here, resort to the Veteran's claims file was not necessary because the Veteran provided an accurate account of his medical history, thus ensuring a fully informed examination. Also, the claims file was not necessary for the examiner to provide findings as to the current severity of the neurological problem, which is the question at issue in this case. The examiner was not asked to resolve conflicting medical opinions or diagnoses. Therefore, review of the file was not needed, and a remand for further examination with respect to the Veteran's claim for an increased rating would only delay the Veteran's appeal and would not likely result in a different outcome. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). 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). Where entitlement to compensation has already been established, the United States Court of Appeals for Veterans Claims (Court) has held that consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. The Veteran contends that his disability is more disabling than contemplated by the current 40 percent disability evaluation. His right lower extremity reflex sympathetic dystrophy has been rated as 40 percent disabling pursuant to the provisions of 38 C.F.R. § 4.124(a), Diagnostic Code 8520. Under this code, an evaluation of 40 percent requires moderately severe incomplete paralysis of the sciatic nerve. The next higher evaluation of 60 percent requires severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent evaluation requires complete paralysis of the sciatic nerve, in which the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124(a), Diagnostic Code 8520. 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 a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The words "slight," "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, 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 C.F.R. §§ 4.2, 4.6. For the reasons that follow, the Board concludes that the Veteran is not entitled to an evaluation in excess of 40 percent for his reflex sympathetic dystrophy of the right lower extremity. The record reflects that the Veteran visited the pain clinic at the Salem VAMC on a number of occasions with complaints of pain in his right lower extremity. During a July 2008 treatment visit, the Veteran reported a progressive worsening of his right leg pain throughout the years, and noted that he underwent several unsuccessful treatments to alleviate the pain. On a scale of one to ten, the Veteran rated his right leg pain at a five, and described the pain as burning, sharp and constant in nature, and aggravated during physical activities such as climbing stairs, walking and emotional stress. The staff physician, Dr. V., reviewed imaging studies of an October 2003 magnetic resonance imaging (MRI) of the lumbar spine, the impression of which revealed degenerative disc at the L2-L3 level, and a moderate degree of central canal stenosis at the L2-L3 level, "resulting from posterior osteophytes and proliferative bony changes at the facet joints." Upon physical examination, Dr. V. noted that the Veteran walked with an antalgic gait and used a cane. It was also noted that his range of motion in the lumbar spine was limited in flexion, extension and lateral rotation. Dr. V. also noted that sensation to pinprick and tuning fork was absent throughout the right foot and ankle, and the strength in extensor hallucis longus was reduced but present. In addition, Dr. V. noted that foot flexion strength was almost absent on the right foot, and Achilles reflex was absent in the right foot. Dr. V. further noted that straight leg raising was positive on the right "with pain over the right L4 distribution anterior thigh." Based on his evaluation of the Veteran, Dr. V. diagnosed the Veteran with traumatic injury to the right ankle four decades prior with persistent pain. Dr. V. also noted that while the Veteran had been diagnosed with complex regional pain syndrome five years prior, the present medical evidence on file was negative for such a diagnosis. Dr. V. recommended that the Veteran undergo the dorsal column stimulator trial and subsequent stimulator implantation for treatment of his pain. The record reflects that the Veteran underwent both aforementioned procedures, and while the spinal cord stimulator helped alleviate some of his pain, the device had to be removed in May 2009 due to a developing infection around the surgical site. During the January 2009 VA examination, the Veteran provided his medical history and reported that he was first diagnosed with reflex sympathetic dystrophy in the 1970s, and that this condition has progressively worsened since his diagnosis. The Veteran also reported painful flare-ups when being "up and about" and in cold weather and described his flare-ups as severe, rating his pain level, on a scale of one to ten (with one being the least level of pain and ten being the highest), at a ten during these flare-ups. He further stated that he becomes fatigued very easily as a result of his flare-ups, and medication and rest help alleviate the painful flare-ups. The Veteran did not report any functional loss, but did complain of pain in his right lower extremity. The Veteran also reported symptoms of paresthesia and dysesthesia. Upon physical examination, the examiner noted that the Veteran's right foot, ankle thigh and calf were very tender. When testing for pain in light touch of both legs, the Veteran indicated that the pain "was dec[r]eased in the whole right leg and foot compared with no decrease in the left leg and foot." The examiner also reviewed the May 2004 bone scan results and determined that the final impression of the bone scan revealed findings consistent with reflex sympathetic dystrophy with changes seen around the ankle region. The examiner also noted that the right reflex sympathetic dystrophy was worse in the right ankle and extended towards the right calf. Based on his evaluation of the Veteran, as well as his impression of the bone scan results, the examiner diagnosed the Veteran with reflex sympathetic dystrophy of the lower extremities. The Veteran underwent another spinal cord stimulator implantation procedure in March 2010 and reported to be doing well at a follow-up outpatient visit one week later. However, during a routine treatment visit dated in October 2010, the Veteran reported to fall on occasion as a result of his right leg, and displayed decreased strength in his right lower extremity on physical examination. Additionally, the Veteran's motor strength was shown to be 3/5 in the right lower extremity and 5/5 in the left lower extremity. It was also noted that the Veteran wore a brace on his right lower extremity. At a June 2011 follow-up visit, the Veteran described continuing problems of weakness and pain in his right lower extremity. During an October 2012 pain consultation, the Veteran reported to experience numbness in his right lower extremity, and stated that he was "starting to stumble. . . ." The Veteran underwent a computed tomography (CT) myelogram of the lumbar spine in November 2012, the results of which revealed "[d]iffuse spondylitic posterior disc osteophyte complex [at] L2/3 with significant disc height loss and moderate bifacet arthrosis contributing to biforaminal stenosis" and a "[m]ild degree of spondylosis and disc disease at other lumbar levels." Pursuant to the October 2012 remand, the Veteran was afforded another VA examination in December 2012, at which time, he described a moderate level of pain and paresthesia in the right lower extremity, as well as occasional swelling in the right foot with activity. The examiner noted that the Veteran uses a cane and a leg brace on a constant basis to help him move around. On physical examination, the Veteran's muscle strength was shown to be 4/5 when performing knee extension exercises in the right lower extremity, and during plantar flexion and dorsiflexion of the right ankle. No muscle atrophy was indicated. In addition, the Veteran's reflexes were 2+ bilaterally in the knees and ankle and he had decreased sensation to light touch in the right upper anterior thigh, as well as the right thigh, knee, lower leg and ankle region. According to the examiner, the Veteran's gait was abnormal upon ambulation, and he described the abnormality as a "short leg type." The examiner further noted that the Veteran's reflex sympathetic dystrophy affected the posterior tibial nerve and resulted in incomplete paralysis of the right lower extremity that is moderate in severity. When asked whether the Veteran's peripheral nerve condition resulted in functional impairment of the extremity such that no effective function remained in that extremity, the examiner marked 'No.' The examiner further noted that the Veteran had previously undergone an electromyography (EMG) and the results did not reveal any abnormalities in the lower extremities. Based on the Veteran's assertions during his VA examinations and treatment visits, his neurological disorder has worsened throughout the years, and he experiences difficulty ambulating and painful flare-ups as a result of his reflex sympathetic dystrophy. As noted above, the evidence reflects that the Veteran has an abnormal gait, and requires the assistance of a cane and leg brace to support his weight as a result of right lower leg condition. A number of VA treatment reports reflect the Veteran's complaints of pain and numbness which radiates to his lower right leg and frequently causes him to fall or stumble. However, while it is clear that there was pain, weakness and decreased sensation in the Veteran's right lower extremity, the record was absent evidence of more significant symptoms. In this regard, the objective medical evidence of record is negative for any signs of muscle wasting or atrophy. Furthermore, the EMG results, as reported by the December 2012 VA examiner, did not reveal any abnormalities in the lower extremities. The Board notes that Diagnostic Code 8520 specifies that to warrant a 60 percent disability rating, there must be incomplete paralysis that is "severe, with marked muscular atrophy." There is no evidence on file demonstrating that muscle atrophy exists for the right lower extremity at any time during the appeal period, and the Veteran does not contend as much. As such, the Board finds that the criteria for an evaluation in excess of 40 percent for right lower extremity reflex sympathetic dystrophy have not been met. In reaching this conclusion, the Board acknowledges the Veteran's belief that the symptoms in his right lower extremity are more severe than that reflected by the current disability rating. The Board finds that the Veteran is certainly competent to discuss the severity of his symptomatology. As a lay person, however, the Board gives more weight to the specific objective findings obtained through specialized testing and physical examinations. Such matters require medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Based on this evidentiary posture, the Board concludes that the totality of the evidence of record has not shown that the Veteran's service-connected right lower extremity reflex sympathetic dystrophy warrants a rating in excess of 40 percent at any time during the appeal period. (Indeed, the VA examiner recently indicated that the affected nerve was the posterior tibial nerve, which nerve is ordinarily rated under Diagnostic Code 8525, allowing for no greater than a 30 percent schedular rating. 38 C.F.R. § 4.124a) Thus, even with the benefit of application of Diagnostic Code 8520, this claim must be denied. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulations, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2010); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-116 (2008), the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is, whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. With regard to the Veteran's service-connected impairment, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented; nor are there any other factors that take this disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned 40 percent disability rating for his reflex sympathetic dystrophy of the right lower extremity contemplate his symptoms, including pain and muscle strength in the lower right extremity, and there are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. Further, the record does not reflect that the Veteran's reflex sympathetic dystrophy causes complete paralysis, or severe incomplete paralysis with marked muscular atrophy in the right lower extremity. As such, the threshold issue under Thun is not met and any further consideration of referral to the appropriate VA officials for extraschedular consideration is not necessary. Lastly, the Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is a part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. It has not been shown or suggested that gainful employment is precluded due to the Veteran's reflex sympathetic dystrophy of the right lower extremity. The Board notes that the Veteran's claim for a TDIU was previously denied in the July 2006 rating decision. Moreover, at the January 2009 VA examination, the Veteran reported that he voluntarily retired, and at the December 2012 VA examination, the Veteran stated that he retired from his job due to his wife's health. The Veteran further indicated that if it were not for his wife's health condition, he would return to employment at once. As such, the examiner found that the Veteran's service-connected right lower extremity reflex sympathetic dystrophy had no effect on his employability. Indeed, a fair reading of the overall evidence does not suggest that the reflex sympathetic dystrophy of the right lower extremity precludes the Veteran from working. As such, the Board does not find that a claim for a TDIU has been reasonably raised by the record with regard to his increased rating claim for reflex sympathetic dystrophy of the right lower extremity and thus the Board finds it unnecessary to consider entitlement at this juncture. ORDER An evaluation in excess of 40 percent for reflex sympathetic dystrophy of the right lower extremity is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs