Citation Nr: 1318112 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 06-39 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a separate rating for objective neurological abnormalities associated with degenerative changes of the lumbosacral spine. 2. Entitlement a separate compensable rating for objective neurological abnormalities associated with degenerative changes of the cervical spine with disc herniation at C5-C6 and C6-C7. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1985 to December 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2009 and February 2011, the Board remanded the case for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Before December 22, 2010, there were no objective neurological abnormalities of the right lower extremity associated with degenerative changes of the lumbosacral spine; from On December 22, 2010, there are objective neurological abnormalities of the right lower extremity associated with degenerative changes of the lumbosacral spine, equating to mild incomplete paralysis of the sciatic nerve. 2. Throughout the period of the appeal, there have been no objective neurological abnormalities of the left lower extremity associated with degenerative changes of the lumbosacral spine. 3. Throughout the period of the appeal, there have been no objective neurological abnormalities associated with the service-connected degenerative changes of the cervical spine with disc herniation at C5-C6 and C6-C7. CONCLUSIONS OF LAW 1. Before December 22, 2010, the criteria for a separate compensable rating for objective neurological abnormalities of the right lower extremity associated with degenerative changes of the lumbosacral spine have been met; from December 22, 2010, the criteria for a separate rating of 10 percent for objective neurological abnormalities of the right lower extremity associated with degenerative changes of the lumbosacral spine have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, 4.124a, Diagnostic Code 8520 (2012). 2. Throughout the period of the appeal, the criteria for a separate compensable rating for objective neurological abnormalities of the left lower extremity associated with degenerative changes of the lumbosacral spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, 4.124a, Diagnostic Code 8520 (2012). 3. Throughout the period of the appeal, the criteria for a separate compensable rating for objective neurological abnormalities associated with degenerative changes of the cervical spine with disc herniation at C5-C6 and C6-C7 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, 4.124a, Diagnostic Code (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letters, dated in October 2005 and in March 2006. The notice included the type of evidence needed to substantiate the underlying claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. Where, as here, service connection has been granted and the initial disability ratings have been assigned, the claims of service connection have been more than substantiated, the claims have been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claims of service connection have been substantiated, the filing of a notice of disagreement with the RO's decision rating the disabilities does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claims for initial higher ratings for degenerative changes of lumbosacral spine and for degenerative changes of the cervical spine with disc herniation at C5-C6 and C6-C7, following the initial grants of service connection. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records. The Veteran was afforded a VA examination in March 2011 with addendums. As the examination reports are based on review of the Veteran's history and described the disabilities in sufficient detail so that the Board's review is a fully informed one, the examination reports are adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disabilities in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As the Veteran has not identified any additional evidence pertinent to the claims and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. 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 military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Criteria for Rating Objective Neurological Abnormalities Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula, any associated objective neurologic abnormalities are evaluated separately under the appropriate Diagnostic Code for the neurologic abnormality. In a decision in February 2011, the Board decided the claim for an initial compensable rating before June 9, 2008, and an initial rating higher than 10 percent from June 9, 2008, for degenerative changes of lumbosacral spine under the General Rating Formula and under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board also decided the claim for an initial compensable rating before September 2, 2009, and an initial rating higher than 10 percent from September 2, 2009, for degenerative changes of the cervical spine with disc herniation at C5-C6 and C6-C7 under the General Rating Formula and under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board remanded the claims to adjudicate whether a separate rating was warranted for any objective neurological abnormalities. As the Board has already decided the claims for increase under the General Rating Formula, except for objective neurological abnormalities, and under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the rating criteria other than the criteria for rating a neurological abnormality are not addressed in this decision. Radiating pain or radiculopathy from degenerative changes of lumbosacral spine is associated with sciatica. Under Diagnostic Code 8520, the criterion for a 10 rating for impairment of the sciatic nerve is mild incomplete paralysis. The criterion for a 20 rating is moderate incomplete paralysis. Radiating pain or radiculopathy from degenerative changes of the cervical spine with disc herniation at C5-C6 and C6-C7 is associated with impairment of the median nerve or ulnar nerve. Under Diagnostic Code 8515, the criterion for a 10 rating for impairment of the median nerve is mild incomplete paralysis. The criterion for a 20 rating is moderate incomplete paralysis. Under Diagnostic Code 8516, the criterion for a 10 rating for impairment of the ulnar nerve is mild incomplete paralysis. The criterion for a 20 rating is moderate incomplete paralysis. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each 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. Evidence On VA examination in July 2006, the Veteran denied any instances of leg or foot weakness, numbness, paresthesias, falling and unsteadiness, but he did complain of mild burning, sharp and shooting sciatic pain occurring yearly or less often. The VA examiner found no objective neurological abnormality of the lumbosacral spine or of the cervical spine. The diagnoses were degenerate joint disease of the lumbar spine with a history of lumbosacral strain with radiculopathy and degenerate joint disease of the cervical spine with disc herniation of C5-C6 and C6-C7. On a separate VA examination in July 2006, the neurological symptoms of the right upper extremity were associated with the service-connected right shoulder acromioclavicular joint separation with nerve impingement. In October 2006, the Veteran was seen for shoulder and neck pain, radiating into the right hand. A private physician stated that the etiology was unclear, but it was either carpal tunnel syndrome or cervical radiculopathy. In May 2008, private medical records show that the Veteran complained of low back pain, radiating down the left lower extremity. It was noted that the Veteran did not have significant pain that radiated into the right lower extremity, but the Veteran had tingling in the left foot. On neurological evaluation, there was no clear cut weakness in the lower or upper extremities. The reflexes were symmetric. The sensory examination to light touch was normal. In July 2008, there was no muscle weakness or sensory deficit in the lower extremities and the reflexes were active and symmetrical. On VA examination in September 2009, neurological testing showed no evidence of motor or sensory deficit of the lumbosacral spine or of the cervical spine. The reflexes were normal. On motor testing of the lower and upper extremities, there was no evidence of paralysis as there was active movement against full resistance. There was no history of bowel or bladder impairment. On sensory testing of the lower and upper extremities, sensation was normal to vibration, pinprick, light touch, and position sense. There was no abnormal sensation. There was no evidence of paralysis as there was active movement against full resistance. There was no history of bowel or bladder impairment. There were no objective abnormalities of the lumbosacral spine and of the cervical spine, such as muscle spasm, atrophy, guarding, tenderness, or weakness. On VA examination in December 2009, the Veteran stated that sitting for more than an hour resulted in pain and numbness radiating to the left lower extremity. He did not report any neurological symptoms associated the cervical spine. On sensory testing of the lower and upper extremities, sensation was normal to vibration, pain, light touch, and position sense. The reflexes were normal. There was no functional loss due to nerve involvement. On December 22, 2010, electrodiagnostic testing showed an unrecordable F-wave for the left ulnar nerve; left carpal tunnel of the median nerve at the wrist; lower peripheral neuropathy; and possibly right lumbosacral radiculopathy. In March 2011 on VA examination, the Veteran described symptoms of pain and numbness in the lower extremities and numbness of the upper extremities. There was no history of neurological hospitalization, surgery, or neoplasm. On motor testing of the lower and upper extremities, there was no evidence of paralysis as there was active movement against full resistance. Muscle tone and strength were normal. There was no atrophy. On sensory testing of the lower and upper extremities, sensation was normal to pinprick, light touch, and position sense. Vibration sense was impaired in the left upper extremity and the right and left lower extremities. There was abnormal sensation in the median nerve in the left upper extremity and the tibial nerve in the right and left lower extremities. The reflexes were active movement against full resistance. The Veteran was employed. In an addendum in March 2012 to the report of VA examination in March 2011, the VA examiner explained there results of the electrodiagnostic testing in December 2010. The VA examiner stated that left carpal tunnel of the median nerve at the wrist was not due to degenerative changes in the cervical spine, that the lower peripheral neuropathy was not associated with the degenerative changes in the lumbosacral spine, and that right lumbosacral radiculopathy represented compression of the nerve root, resulting in low back pain radiating into the affected limb. In May 2012 on VA examination, the Veteran complained of low back and neck pain. He described numbness and tingling in the right and left hands and radiating pain in the left lower extremity. It was noted that the Veteran's occupation was with civil service. There was no evidence of incontinence or proximal weakness or foot drop. A nerve conduction study (NCS) of the medial nerve was normal. The NCS study of the ulnar nerve was normal except for a mild conduction block over the left elbow. EMG testing was normal in the left arm and in the right and left lower legs. The VA examiner found no evidence of radiculopathy of the upper or lower extremities. In an addendum in June 2012 to the report of VA examination in May 2012, the VA examiner stated that there was no evidence of radiculopathy of the upper or lower extremities. The VA examiner explained that the right and left carpal tunnel syndrome and ulnar nerve irritation at the elbow were not associated with degenerative changes of the cervical spine with disc herniation at C5-C6 and C6-C7, and that the right and left tarsal tunnel syndrome and the right peroneal an tibial nerve irritation were not associated with degenerative changes of the lumbosacral spine. Analysis Lower Extremities Under Diagnostic Code 8520, the criterion for a 10 percent rating is mild incomplete paralysis of the sciatic nerve. The criterion for a 20 rating is moderate incomplete paralysis. On VA examination in July 2006, the VA examiner found no objective neurological abnormality of the lumbosacral spine. In May 2008, private medical records showed no clear cut weakness in the lower extremities. The reflexes were symmetric. The sensory examination to light touch was normal. In July 2008, there was no muscle weakness or sensory deficit in the lower extremities and the reflexes were active and symmetrical. On VA examination in September 2009, the reflexes were normal. On motor testing of the lower extremities, there was no evidence of paralysis as there was active movement against full resistance. There was no history of bowel or bladder impairment. On sensory testing of the lower extremities, sensation was normal to vibration, pinprick, light touch, and position sense. There was no abnormal sensation. There were no objective abnormalities of the lumbosacral spine, such as muscle spasm, atrophy, guarding, tenderness, or weakness. On VA examination in December 2009, on sensory testing of the lower extremities, sensation was normal to vibration, pain, light touch, and position sense. The reflexes were normal. There was no functional loss due to nerve involvement. Although the Veteran complained of radiating pain in the lower extremities, both VA and private medical records from 2006 to 2009 consistently show normal motor and sensory findings and no objective neurological abnormalities and no functional loss due to nerve involvement. In the absence of any objective evidence of nerve impairment, the findings due not more nearly approximate or equate to mild incomplete paralysis of the sciatic nerve under Diagnostic Code 8520 before December 22, 2010. On December 22, 2010, electrodiagnostic testing showed possible right lumbosacral radiculopathy. In an addendum in March 2012 to the report of VA examination in March 2011, the VA examiner explained that the results of the electrodiagnostic testing in December 2010, namely, right lumbosacral radiculopathy, represented compression of the nerve root, resulting in low back pain radiating into the affected limb. In March 2011 on VA examination, there was no evidence of paralysis of the lower extremities. Muscle tone and strength were normal. There was no atrophy. On sensory testing of the lower extremities, sensation was normal to pinprick, light touch, and position sense. In May 2012 on VA examination, EMG testing was normal in the right and left lower legs. In an addendum in June 2012 to the report of VA examination in May 2012, the VA examiner stated that there was no evidence of radiculopathy of the lower extremities. As there is evidence of an objective neurological abnormality by electrodiagnostic testing on December 22, 2010, namely, right lumbosacral radiculopathy, resulting in pain in the right lower extremity, the finding more nearly approximates or equates to mild incomplete paralysis of the sciatic nerve in the right lower extremity. Except for pain due to right lumbosacral radiculopathy by objective electrodiagnostic testing, there is no other objective neurological abnormality of the right lower extremity, and the findings do not more nearly approximate or equate to moderate incomplete paralysis of the sciatic nerve in the right lower extremity under Diagnostic Code 8520 from December 22, 2010. The same objective neurological abnormality by electrodiagnostic testing was not shown in the left lower extremity. In the absence of any objective evidence of sciatic nerve impairment in the left lower extremity, the disability picture does not more nearly approximate or equate to mild incomplete paralysis of the sciatic nerve in the left lower extremity under Diagnostic Code 8520 from December 22, 2010. Upper Extremities Radiating pain or radiculopathy from degenerative changes of the cervical spine with disc herniation at C5-C6 and C6-C7 is associated with impairment of the median nerve or ulnar nerve. Under Diagnostic Code 8515, the criterion for a 10 rating for impairment of the median nerve is mild incomplete paralysis. The criterion for a 20 rating is moderate incomplete paralysis. Under Diagnostic Code 8516, the criterion for a 10 rating for impairment of the ulnar nerve is mild incomplete paralysis. The criterion for a 20 rating is moderate incomplete paralysis. On VA examination in July 2006, the VA examiner found no objective neurological abnormality of the cervical spine. On a separate VA examination in July 2006, the neurological symptoms of the right upper extremity were associated with the service-connected right shoulder acromioclavicular joint separation with nerve impingement. On VA examination in September 2009, neurological testing showed no evidence of motor or sensory deficit of the cervical spine. The reflexes were normal. On motor testing of the upper extremities, there was no evidence of paralysis as there was active movement against full resistance. On sensory testing of the upper extremities, sensation was normal to vibration, pinprick, light touch, and position sense. There was no abnormal sensation. On VA examination in December 2009, the Veteran did not report any neurological symptoms associated the cervical spine. On sensory testing of the upper extremities, sensation was normal to vibration, pain, light touch, and position sense. The reflexes were normal. There was no functional loss due to nerve involvement. On December 22, 2010, electrodiagnostic testing showed an unrecordable F-wave for the left ulnar nerve and left carpal tunnel of the median nerve at the wrist. In March 2011 on VA examination, on motor testing of the upper extremities, there was no evidence of paralysis as there was active movement against full resistance. Muscle tone and strength were normal. There was no atrophy. On sensory testing of the upper extremities, sensation was normal to pinprick, light touch, and position sense. There was abnormal sensation in the median nerve in the left upper extremity. The reflexes were active movement against full resistance. In an addendum in March 2012 to the report of VA examination in March 2011, the VA examiner explained the results of the electrodiagnostic testing in December 2010, left carpal tunnel syndrome, was not due to degenerative changes in the cervical spine. In May 2012 on VA examination, a nerve conduction study of the medial nerve was normal. The NCS study of the ulnar nerve was normal except for a mild conduction block over the left elbow. EMG testing was normal in the left arm. The VA examiner found no evidence of radiculopathy of the upper extremities. In an addendum in June 2012 to the report of VA examination in May 2012, the VA examiner stated that there was no evidence of radiculopathy of the upper extremities. The VA examiner explained that the right and left carpal tunnel syndrome and ulnar nerve irritation at the elbow were not associated with degenerative changes of the cervical spine with disc herniation at C5-C6 and C6-C7. Although the Veteran complained of numbness and tingling in the upper extremities, both VA and private medical records from 2006 to 2012 consistently show normal motor and sensory findings and no objective neurological abnormalities associated with the disability of the cervical spine. In the absence of any objective evidence of in nerve impairment, the findings due not more nearly approximate or equate to mild incomplete paralysis of the median nerve under Diagnostic Code 8515 or the ulnar nerve under Diagnostic Code 8516 at any time during the appeal period. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, it is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for a service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe a disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the current disability levels and symptomatology to the Rating Schedule, the rating criteria encompass the neurological manifestations of the service-connected disabilities of the lumbosacral and cervical segments of the spine. In other words, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule. The assigned schedular ratings are therefore adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). A Total Disability Rating for Compensation based on Individual Unemployability The Veteran has been employed throughout the period of the appeal, and the Veteran has not expressly raised and the record does not reasonably raise, a claim for total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). ORDER Before December 22, 2010, a separate compensable rating for objective neurological abnormalities of the right lower extremity associated with the service-connected degenerative changes of the lumbosacral spine is denied. From December 22, 2010, a separate rating of 10 percent for objective neurological abnormalities of the right lower extremity associated with the service-connected degenerative changes of the lumbosacral spine is granted. Through the appeal period, a separate compensable rating for objective neurological abnormalities of the left lower extremity associated with the service-connected degenerative changes of the lumbosacral spine is denied. Through the appeal period, a separate compensable rating for objective neurological abnormalities associated with degenerative changes of the cervical spine with disc herniation at C5-C6 and C6-C7 is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs