Citation Nr: 1317359 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 05-38 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial compensable rating for radiculopathy of the right lower extremity. 2. Entitlement to an initial rating in excess of 10 percent from January 7, 2008, for radiculopathy of the left lower extremity. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to the service-connected low back disability with radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from February 1978 to February 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, which granted service connection and assigned an initial 10 percent rating for a low back disability. The Veteran's disagreement with the rating assigned for his low back disability led to this current appeal. The RO in New York, New York is currently the agency of original jurisdiction. A brief explanation of the procedural history of the case is warranted. In an April 2009 decision, the Board denied the Veteran's claim for a disability rating in excess of 10 percent for the Veteran's service-connected low back disability and granted a separate 10 percent rating for radiculopathy of the left lower extremity associated with the low back disability from January 7, 2008. The Board remanded the claims for a rating in excess of 10 percent from January 7, 2008, for radiculopathy of the left lower extremity, as well as a claim for an initial compensable rating for radiculopathy of the right lower extremity for further development. A March 2010 rating decision assigned a 10 percent rating for radiculopathy of the left lower extremity, effective January 7, 2008. This action did not satisfy the Veteran's appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The case was most recently before the Board in August 2012, at which time the left and right lower extremity claims were remanded for additional development, to include scheduling the Veteran for a VA examination. The remand only addressed the issues of an increased rating for the left lower extremity radiculopathy and a possible compensable rating for right lower extremity radiculopathy. As reflected in a February 2013 memorandum, the RO determined that the August 2012 directive requesting a VA examination for the right lower extremity was in error because the Veteran was not service connected for this disorder. In the February 2013 Supplemental Statement of the Case (SSOC), the RO denied the claim for a separate rating for right lower extremity radiculopathy. The Board again highlights that the right and left lower extremity issues currently on appeal arose from the Veteran's disagreement with the increased initial disability rating assigned for his service-connected low back disability. The pertinent VA regulation provides that separate ratings are assigned for any associated neurological abnormalities associated with a service-connected spine disability (in this case degenerative disc of the lumbar spine) under the appropriate diagnostic code(s). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). In this case, the objective medical evidence shows radiculopathy affecting the right lower extremity. Therefore, the issue of a separate compensable rating for right lower extremity radiculopathy is part and parcel of the claim for a higher initial rating for the low back disability, and the claim is properly included as on appeal. An additional remand for issuance of an SSOC as to this issue is unnecessary as the Board has granted a separate 10 percent rating for the right lower extremity radiculopathy in the decision below, and there is no prejudice to the Veteran. In June 2007, the Veteran testified at a hearing before a Veterans Law Judge held at the RO. A transcript of the hearing has been associated with the claims files. The Board again notes that the Veterans Law Judge who presided at the June 2007 Board hearing is no longer with the Board. In letters dated in May 2011, July 2011, and June 2012, the Board informed the Veteran of this fact and of his options for another Board hearing. Although these letters were returned to the Board as undeliverable, a copy of each letter was also sent to the Veteran's representative. No response to these letters has been received, nor has the Veteran or his representative requested that he be afforded another hearing. The Board assumes that he does not want another hearing and will proceed with his appeal. As explained in the REMAND that follows the ORDER section of this decision, the issue of entitlement to a TDIU based on the service-connected low back disability with radiculopathy is also properly before the Board but is being remanded for further development. If the Veteran believes that he is entitled to a TDIU based on all of his service-connected disabilities, he should so inform the RO, which should respond appropriately to any such clarification from the Veteran. FINDINGS OF FACT 1. Since October 20, 2012, the Veteran has had right lower extremity radiculopathy associated with his service-connected low back disability that has more closely approximated a mild incomplete paralysis of the sciatic nerve than moderate incomplete paralysis of the nerve. 2. Since January 7, 2008, the Veteran has had left lower extremity radiculopathy associated with his service-connected low back disability that has more nearly approximated moderate incomplete paralysis of the sciatic nerve than moderately severe incomplete paralysis of the nerve. CONCLUSIONS OF LAW 1. The criteria for a separate, 10 percent disability rating, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code 8520 (2012). 2. The criteria for a 20 percent rating, but no higher, for radiculopathy of the left lower extremity from January 7, 2008, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.3, 4.6, 4.7, 4.10, 4.123, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters sent in October 2004 and November 2007. Although he was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). In addition, the record reflects that service and post service treatment records have been obtained. Further, the Veteran was afforded appropriate VA examinations. The Board finds that the examination reports are adequate to allow proper adjudication of the issues on appeal. Collectively, the examiners conducted complete examinations, recorded all findings considered relevant under the applicable diagnostic codes, and considered the full history of the disabilities. There is no indication that the disabilities have increased in severity since the Veteran was last examined in October 2012. Here, the Board notes that the Veteran's claims were remanded in August 2012 so that the RO or the Appeals Management Center (AMC) could verify the Veteran's address and arrange for the Veteran to be scheduled for an appropriate examination. After verifying his address and providing notice of the August 2012 remand to the Veteran and his representative, the AMC arranged for the Veteran to be scheduled for appropriate examinations in October 2012. As determined above, the October 2012 examination reports are adequate with which to decide the Veteran's claims. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the August 2012 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. Accordingly, the Board will address the merits of the claim. Legal Principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Diagnostic Code 8520 pertains to paralysis of the sciatic nerve, and provides that a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. Moderately severe incomplete paralysis merits a 40 percent rating. A rating of 60 percent requires severe incomplete paralysis with marked muscle atrophy. The maximum rating of 80 percent is reserved for complete paralysis shown by manifestations such as: the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis for a particular 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 rating schedule does not define the terms "mild," "moderate," or "severe." Therefore, the Board must evaluate the evidence of record and reach a decision that is equitable and just. See 38 C.F.R. § 4.6. If two disability evaluations are potentially applicable, the higher rating 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the claimed disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to these disabilities. Right Lower Extremity Radiculopathy The Veteran was afforded a VA examination in November 2004 in response to his claim for service connection for low back disability; the associated examination report is negative for reported symptomatology or clinical findings related to a neurologic disorder affecting the right lower extremity. During the June 2007 hearing, the Veteran described having back pain that sometimes radiated to his right leg. He described experiencing a "stinging" type of pain and reported experiencing a pins and needles sensation approximately four or five times over the previous year. His symptoms reportedly lasted for a couple of hours. The November 2008 VA spine examination report documents the Veteran's report of back pain that radiated to both of his lower extremities. Although he reported experiencing numbness in his left leg for the past three years, he did not report any neurologic symptoms for his right leg. On the neurologic examination, the dermatomes of both lower extremities were intact. Myotomes of the lower extremities were intact for strength, bulk, and muscle tone. Reflexes were reported as 2+, and straight leg raises testing was positive only for the left lower extremity. The examiner diagnosed lumbar radiculopathy. The examiner did not specify whether this diagnosis pertained to the right lower extremity. During the October 20, 2012, VA spine and peripheral nerves conditions examinations, the Veteran reported having progressive back pain and stiffness with bilateral radicular symptoms. The physical examination revealed muscle strength of 5/5, reflexes of 2+, and normal sensation for the right lower extremity. Straight leg raises testing was negative on the right side. There was no evidence of muscle atrophy or trophic changes. As shown in the spine examination report, the examiner concluded that the Veteran had radicular pain or symptoms due to radiculopathy. The examiner described the Veteran's symptoms as mild for the right lower extremity, and noted his symptoms to include intermittent pain, paresthesias and/or dysesthesias, and numbness. There was no finding of functional impairment of the extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner noted bilateral involvement of the sciatic nerve on the spine examination report, but did not include this notation on the peripheral nerves examination report. The examiner determined that the severity of the right lower extremity radiculopathy was mild. According to this examiner, the Veteran's peripheral nerve condition, along with his low back disability, impacted his ability work in that the low back disability limited but did not prohibit work involving heavy labor or rigorous physical exertion. The examiner opined that the Veteran's symptoms would not limit or prohibit sedentary work activities. The foregoing evidence supports the assignment of a separate 10 percent rating for radiculopathy of the right lower extremity from October 20, 2012. The Veteran has described experiencing radicular symptoms affecting his right leg and the October 2012 VA examination reports show the earliest findings of right leg radiculopathy. Specifically, the October 20, 2012, VA examiner identified involvement of the right sciatic nerve and the presence of radiculopathy affecting the right lower extremity associated with the low back disability. Although the Veteran previously reported having right leg neurologic symptomatology, the medical evidence of record does not include any reports or findings specifically attributable to a right lower extremity neurologic disorder prior to October 20, 2012. When viewed in its entirety, and when all doubt is resolved in the Veteran's favor, the evidence of record indicates that the Veteran experiences, at least to some extent, neurological symptomatology affecting his right lower extremity that is distinct from but related to his low back disability. The Board finds that the Veteran's reported right lower extremity symptomatology and the medical evidence are more consistent with mild incomplete paralysis of the sciatic nerve and that the Veteran is entitled to a separate initial rating of 10 percent under Diagnostic Code 8520. The Board further finds that the Veteran's right lower extremity radiculopathy has not met the criteria for a rating in excess of 10 percent. In this regard, although the Veteran has reported experiencing bilateral radicular symptoms, there is no objective evidence of any sensory or motor deficits affecting his right lower extremity. Given this, the evidence of record does not show that the Veteran's symptoms are of such a severity as to more nearly approximate moderate than mild incomplete paralysis under Diagnostic Code 8520. As such, a disability rating in excess of the 10 percent rating assigned herein is not warranted. Left Lower Extremity Radiculopathy The Veteran asserts that his service-connected left leg radiculopathy warrants a disability higher rating than the currently assigned 10 percent rating. As previously explained, the Veteran was granted a separate 10 percent rating for radiculopathy of the left lower extremity in the April 2009 Board decision, effective from January 7, 2008. The originating agency effectuated the award in a March 2010 rating decision. Throughout the pendency of the appeal, the Veteran's left lower extremity radiculopathy has been evaluated under Diagnostic Code 8520. During the June 2007 hearing, the Veteran described having pain that radiated to his left leg all the way down to the foot. He described experiencing a "stinging" type of pain and reported experiencing a pins and needles sensation approximately four or five times over the previous year. His symptoms reportedly lasted for a couple of hours. VA treatment records dated in January 2008 include the Veteran's reports of left leg symptomatology associated with his low back disability. A January 2008 neurology examination revealed decreased strength of 4/5 in the left lower extremity with dorsiflexion and plantar flexion of the left foot; diminished muscle tone in the left calf, and decreased sensation to pinprick in the distribution of L4-S2. During a neurology examination later that same month, the Veteran reported experiencing episodes of numbness in his left lower leg below the knee. Although he reported some weakness, his report was not entirely clear. The clinical examination revealed decreased sensation to pinprick and absent vibration just below the left patella extending to the dorsum of the foot. Pulses were intact on the left, and reflexes were symmetric bilaterally. The diagnosis, in pertinent part, was two intermittent episodes of paresthesia below the left knee of an unknown etiology. An April 2008 VA treatment record shows that the Veteran sought emergency care after experiencing back pain and left leg numbness for two days. The Veteran underwent a VA examination in November 2008, at which time he reported a two year history of pain radiating to the lower extremities. Additional symptoms included a three year history of numbness from the lower left leg to the left foot and left lower leg weakness. His symptoms reportedly began in the morning after waking and interfered with his sleep. He denied any loss of ambulation, but was noted to use a cane due to an unstable gait. Regarding his low back pain and bilateral lower extremity numbness and/or weakness, the Veteran reported having weekly flare ups precipitated by the weather and exercise. The Veteran experienced moderately decreased limitation of motion or functional impairment during a flare up. The examiner noted that the Veteran was independent with his activities of daily living, had formerly worked as an electrician, and was unemployed. The clinical examination revealed that the dermatomes of the lower extremities were intact. The myotomes of the lower extremities were intact for strength, bulk, and tone. Patella and Achilles reflexes were 2+ bilaterally. Straight leg raises were positive at 45 degrees on the left. Non-organic physical signs were negative. Based on the examination findings, the examiner rendered a diagnosis of lumbar radiculopathy and spondylosis. The examiner determined that the Veteran had mild to moderate functional impairment, but he did not state whether this was solely due to the Veteran's lumbar spine condition. The Veteran most recently underwent VA spine and peripheral nerves conditions examinations in October 2012 to assess his left lower extremity radiculopathy. The physical examination revealed normal muscle strength (5/5), deep tendon reflexes (2+), and normal sensation for left lower extremity. Straight leg raises testing was negative. There was no evidence of muscle atrophy or trophic changes. The examiner noted that the Veteran had intermittent pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity, which were all described as moderate in severity. On the spine examination report, the examiner noted involvement of the sciatic nerve, and the examiner characterized the Veteran's left lower extremity radiculopathy as moderate in severity. On the peripheral nerve examination report, the examiner answered "no" to the question of whether there was functional impairment of the extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis; he did not identify involvement of the sciatic nerve in this report. The examiner noted that the Veteran's peripheral nerve condition and low back disability impacted his ability to work, in that the low back disability would limit, but not prohibit, work involving heavy labor or rigorous physical exertion. He determined that the Veteran's symptoms would not limit or prohibit sedentary work activities, such as administrative or clerical work. In light of the foregoing, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran's left lower extremity radiculopathy from January 7, 2008. The Veteran's report of pain, numbness, and a burning sensation in his left have been consistent since this date, and the objective evidence shows decreased strength, muscle tone, and sensation for the left lower extremity in January 2008. Significantly, the October 2012 VA examiner opined that the severity of the Veteran's left lower extremity radiculopathy was moderate. Given the findings of the October 2012 VA examiner and the earlier evidence of diminished strength, muscle tone, and sensation, the Board resolves all doubt in the Veteran's favor and concludes the presence of moderate incomplete paralysis of the sciatic nerve has been approximated since January 7, 2008. The evidence, however, does not show that a disability rating in excess of 20 percent is warranted in this case. There is no evidence that the Veteran's left leg neurological symptomatology causes any impairment of the lower extremity characterized by any actual paralysis. His symptoms have primarily been sensory as evidenced by the pain, numbness, tingling, etc. Motor involvement has been minimal. On the isolated occasion when weakness was identified, it was generally described as 4/5. There is no medical opinion or objective evidence indicating that the incomplete paralysis of the left leg is more than moderate. Therefore, the Board must conclude that the neurological impairment in the left lower extremity has more nearly approximated moderate than moderately severe since January 7, 2008. Conclusion In reaching the above decision, the Board has considered the Veteran's statements that higher disability ratings are warranted for his left and right lower extremity radiculopathy. However, the Veteran has not identified any legal or factual basis justifying the assignment of ratings higher than what have been assigned herein. Consideration has been given to assigning a staged rating; however, at no time during the period in question has either disability warranted more than the rating granted herein See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered the doctrine of reasonable doubt in reaching this decision; the Board has resolved reasonable doubt where applicable but has determined that it is not applicable to the claims of entitlement to ratings in excess of the 10 percent and 20 percent ratings granted herein because the preponderance of the evidence is against those claims. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether the Veteran's claims should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the Veteran's left and right lower extremity radiculopathy are contemplated by the schedular criteria. Therefore, the Board has determined that referral of the claims for extra-schedular consideration is not in order. (CONTINUED ON NEXT PAGE) ORDER The Board having determined that a separate 10 percent rating, but no higher, is warranted for radiculopathy of the right lower extremity from the October 20, 2012, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. The Board having determined that a 20 percent rating, but no higher, is warranted for left lower extremity radiculopathy from January 7, 2008, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. REMAND On his November 2005 VA Form 9 and during the June 2007 Board hearing, the Veteran essentially testified that he was unable to work in his previous field of employment as an electrician maintenance mechanic due to his service-connected low back pain and his bilateral leg symptomatology. He has also asserted that he is unable to obtain sustainable employment. The Board notes that a claim for a TDIU has not been adjudicated by the RO. According to the VA General Counsel, the question of TDIU entitlement may be considered as a component of an appealed increased rating claim if the TDIU claim is based solely upon the disability or disabilities which are the subject of the increased rating claim. If the veteran asserts entitlement to a TDIU based in whole or in part on other service-connected disabilities which are not the subject of the appealed RO decision, the Board lacks jurisdiction over the TDIU claim except where appellate jurisdiction is assumed in order to grant a benefit, pursuant to 38 C.F.R. 19.13(a). See VAOGCPREC 6-96. As the Veteran asserts that he is unemployable due to his service-connected low back disability with radiculopathy, the issue of entitlement to a TDIU based on those disabilities is before the Board. However, further development is required before the Board decides the TDIU issue. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Provide the Veteran with all required notice in response to the claim for a TDIU based on the service-connected low back disability with radiculopathy. In addition, provide him with the appropriate form to claim entitlement to a TDIU and request him to complete and return it. 2. Undertake appropriate development to obtain any outstanding evidence pertinent to the Veteran's claim. 3. Undertake any other indicated development. 4. Then, the RO or the AMC should adjudicate the Veteran's claim for TDIU based on the service-connected low back disability in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be issued a Supplemental Statement of the Case and provided an appropriate opportunity to respond before the claims folders are returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs