Citation Nr: 1319275 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 04-30 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE 1. Entitlement to a rating in excess of 20 percent for a pelvic and lumbar spine disability, characterized as residuals of a pelvic fracture, on an extraschedular basis. 2. Entitlement to a separate compensable rating for any neurological abnormalities associated with a service-connected a pelvic and lumbar spine disability REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from April 1983 to March 1987. This matter is on appeal from a June 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified before the undersigned Veterans Law Judge in August 2009. A transcript of the hearing is of record. The issue on appeal arises from the Veteran's March 2002 claim, which sought an increased rating for the residuals of her service-connected pelvic fracture. After this claim was remanded in September 2009 and again in May 2011 for further development, the Board issued a decision in November 2011, determining that a 20 percent rating, but no more, was warranted. The Veteran appealed the Board's November 2011 decision to the Court of Appeals for Veterans Claims (Court) which, in July 2012, vacated the Board's decision. Specifically, it was noted that the Board failed to address whether the Veteran was entitled to an increased rating on an extraschedular basis, whether a separate rating based on neurological abnormalities was warranted, and whether a total disability rating based on individual unemployability (TDIU) was for application. Of note, the Court did not vacate the Board's determination that a rating in excess of 20 percent was not warranted on a schedular basis, and this aspect of the claim is no longer on appeal. The Board recognizes that it may not consider aspects of any claim that have not been initially been considered by the RO. See Hickson v. Shinseki, 23 Vet. App. 394, 403 (2010) (the Board must provide the RO with an opportunity to consider the evidence, assess its credibility and probative value in the first instance, and render a new decision on the merits). However, review of the procedural history of this case indicates that the RO has already considered the issues on appeal, and there is no prejudice to the Veteran by considering these issues without being first considered by the RO. Rather, the most recent supplemental statement of the case (SSOC) in June 2011 specifically addressed the Veteran's neurological symptoms, to include her complaints of pain in the lower extremities and the results of a neurological examination. Moreover, when this SSOC considered factors such as "marked interference with employment, frequent periods of hospitalization, or signs, symptoms, or manifestation[s] not covered by the evaluation standards," the Board may conclude that the RO has considered whether an increased rating on an extraschedular basis was warranted. Finally, although this SSOC did not address entitlement to TDIU, the Board has determined that this issue is not on appeal. Therefore, the Board may consider the merits of her claim without review by the RO. FINDINGS OF FACT 1. The Veteran's pelvic and lumbar spine disability may be adequately considered under the schedular criteria, and the question of whether it presents an exceptional disability picture that is characterized by factors such as frequent hospitalizations or interference with employment need not be considered. 2. The Veteran's service-connected pelvic and lumbar spine disability is productive of neurological manifestations that more nearly approximate that of mild paralysis, pain and radiculopathy of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for a pelvic and lumbar spine disability, characterized as residuals of a pelvic fracture, on an extraschedular basis, have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. § 3.321 (2012). 2. The criteria for a separate 10 percent rating, but no more, for a sciatic nerve disability in the left lower extremity, as associated with a service-connected pelvic and lumbar spine disability, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2003 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed her of what evidence was required to substantiate the claims and of her and VA's respective duties for obtaining evidence. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records and records submitted in conjunction with a claim to the Social Security Administration (SSA). Further, the Veteran submitted treatment records from a private facility as well as her own statements in support of her claim. VA examinations with respect to the issues on appeal were also obtained in February 2003, March 2006, September 2008 and May 2011. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA examinations obtained in this case are more than adequate, they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Next, the Veteran was also afforded a hearing before the undersigned Veterans Law Judge in August 2009. The hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Notably, the Veteran was specifically asked about the symptoms related to her pelvic injury residuals, including the neurological symptoms she experiences, as well as how it affects her employment. Finally, it is noted that this appeal was remanded by the Board in September 2009 and again in May 2011 for further development. Specifically, in the September 2009 Remand, the Board instructed the RO to obtain all VA and private treatment records since January 2008, and to afford the Veteran a new VA examination to assess the current nature and severity of her service-connected disabilities. The Board remanded the claim again in May 2011 because the required VA examination had not been completed. The Board is now satisfied there was substantial compliance with these Remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Veteran was provided a VA examination in May 2011, which the Board finds adequate for adjudication purposes. The RO also attempted to obtain all additional treatment records. While no further evidence was ultimately acquired, the Board is nevertheless satisfied that the duty to assist has been met in this regard. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in June 2011. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, pursuant to the Board's November 2011 decision, the Veteran is currently rated at 20 percent for the residuals of her service-connected pelvic and lumbar spine disability. When she submitted a claim for an increased rating in 2002, her disorder was rated under 38 C.F.R. § 4.71a, DC 5294 (2002) (addressing sacroiliac injuries). However, as was noted by the Board in November 2011, 38 C.F.R. § 4.71a was revised to incorporate the use of a general rating formula. See 68 Fed. Reg. 51454-51456 (August 27, 2003). In view of that amendment, the Veteran's disability was recharacterized, and now rated under both 38 C.F.R. § 4.71a, DCs 5263 (addressing sacroiliac injuries) and 5243 (addressing intervertebral disc syndrome). Although the Veteran appealed the Board's November 2011 decision to the Court of Appeals for Veterans Claims, the Court did not vacate the Board's decision regarding the assigned schedular rating for her pelvic and lumbar spine disability. Rather, the only schedular issue remaining on appeal is whether a separate rating is warranted for any neurological abnormalities resulting from her disability. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) ("Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code"). In contrast to the diagnostic codes addressing lumbar spine disabilities themselves, both the current and pre-2003 regulations are identical in their language requiring that separate ratings will be assigned for associated neurologic abnormalities. Moreover, none of the applicable diagnostic codes addressing neurologic disorders have been amended during the course of this appeal. Therefore, there is only one version of the applicable diagnostic codes to consider. Cf. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part by Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. When considering whether a separate rating for peripheral nerve injuries should be assigned, the Board must specifically consider the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. However, when the involvement is only a sensory deficit, the rating should be considered "mild," or at most, "moderate" in degree. 38 C.F.R. § 4.124. Moreover, while many of the diagnostic codes that apply to neurological disorders use terms such as "mild," "moderate," or "severe," these are not defined by the rating criteria. In such cases, rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." See 38 C.F.R. § 4.6 In this case, the Veteran has repeatedly complained of radiating pain in the lower extremities, and particularly in the left lower extremity. For example, at an evaluation in September 2002, she described pain that was radiating into her left buttock. She made similar complaints at her VA examinations in February 2003 and again in May 2011. However, she has not complained of any other form of neurological disorders. In fact, at her VA examination in February 2003 and a private evaluation in January 2005, she specifically denied any bowel or bladder dysfunction. Given such symptoms, the Board determines that 38 C.F.R. § 4.124a, DC 8520 (addressing paralysis of the sciatic nerve, and well as neuritis and neuralgia of that nerve) is the only applicable diagnostic code for consideration. Under this diagnostic code a compensable rating is warranted when the evidence indicates: * Incomplete paralysis (10 percent for "mild," 20 percent for "moderate," 30 percent for "moderately severe" and 60 percent for "severe"); or * Complete paralysis, characterized by evidence such as the foot dangles and drops, with no active movement possible in the muscles below the knee, and flexion of the knee that is weakened or lost (80 percent). Based on the evidence of record, the Board determines that a separate 10 percent rating is warranted for the neurological symptoms in the Veteran's left lower extremity. Specifically, in June 2002, the Veteran stated that her left foot would become cold when bearing weight. Upon examination, there was a "palpable coolness" over the dorsum of the left foot compared to the right. In July 2002, she stated that it felt like "pins and needles" across her back. However, a neurological evaluation in September 2002 indicated normal strength at the knee and hip to maximum resistance and good strength to minimum resistance at the ankle and foot in each lower extremity. Her muscle tone was normal, she was able to ambulate completely independently when performing substantially all common tasks. Her reflexes were normal bilaterally. Next, at a private evaluation in November 2003, the Veteran complained of low back pain that radiated into the left leg, which she claimed causes pain and giving out. Upon examination, she exhibited slight weakness in the left leg and ankle, but to only a 4 out of a 5 scale. Her sensory examination was grossly normal to pinprick and light touch, and her reflexes were only slightly less than full. A full neurological examination in December 2003 indicated only "mild left L5 radiculitis." The Veteran's private physician submitted a letter in May 2004, where she noted the Veteran's complaints of leg pain. However, upon examination, her gait was antalgic, her straight leg tests were negative bilaterally, no weakness was observed, and her deep tendon reflexes were only slightly diminished. At a subsequent neurological evaluation in October 2004, there was decreased sensation to light touch within the left L5 dermatome, and there was decreased muscle strength in the left foot in dorsiflexion. At another evaluation in November 2004, she indicated that the use of amitriptyline and Neurotin helped "significantly" with her symptoms, and she specifically denied any weakness or gait difficulties. Her symptoms were largely similar in January 2005, where there were "no apparent signs of radiculopathy." Moreover, at her VA examination in March 2006, her straight leg raising tests were normal bilaterally, and her reflexes, strength and sensation were equal in the lower extremities. When the Veteran underwent a VA examination in September 2008, her sensorimotor evaluation was normal. However, at her most recent VA examination in May 2011, the examiner observed that a straight leg raise test caused "a little bit of back pain on the left side," and there was about an inch of atrophy on her left calf. She also exhibited a small amount of decreased sensation in her left leg. Her right leg was neurologically normal. Given these results, it is clear that the neurological symptoms are more pronounced in the Veteran's left lower extremity. However, when considering the evidence in its totality, it does not appear that the neurological symptoms are more than "mild" in nature. Namely, there is no clinical evidence of incapacitation and, while there is some numbness and tingling, the evidence does not truly reflect partial paralysis to a "moderate" degree. As for her right lower extremity, the evidence substantially indicates that her neurological functioning is normal. Therefore, while a separate 10 percent rating under 38 C.F.R. § 4.124a, DC 8520, for her left lower extremity, a separate compensable rating is not warranted for her right lower extremity. In considering the extent to which separate ratings are warranted for neurological symptoms, the Board has also considered the Veteran's statements regarding such symptoms. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno, 6 Vet. App. at 470. She is not, however, competent to identify a specific level of disability of her neurological symptoms according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's neurological disabilities has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Extraschedular Considerations Next, the Board will consider whether referral for an extraschedular evaluation is warranted for either her separate 10 neurological disability rating or for the 20 percent schedular rating she receives for her underlying pelvic and lumbar spine disability. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court of Appeals for Veteran's Claims has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of her relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, the Board has explained why the Veteran's relevant symptoms do not merit ratings greater than the ones assigned. First, although ratings under the general rating formula for spine disorders is based largely on range of motion of the lumbar spine, the Board was also required to consider factors such as functional loss, to include limitations due to pain, and how the disability impacts the behavior of the claimant during motion. The Board also considered weakness when considering the appropriate rating. See 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). As such, when determining that a 20 percent rating was warranted, the Board considered both the quantitative limitations as well as the functional effects of her disability on her daily living. For example, the Veteran described on a number of occasions the limitations she has when walking and standing, and did so in great deal at her hearing before the Board in August 2009. However, it should be noted that the VA examiner in May 2011 stated that there was "no incapacitation." In sum, given the expansive range of factors that VA regulations require to be considered above the quantitative factors listed in the general rating formula, the Board determines that these diagnostic codes covered by the general rating formula are adequate to properly consider the Veteran's disability. As for the Veteran's neurological ratings, given that the relevant diagnostic codes assign ratings based on broadly defined terms such as "mild," "moderate" and "severe," the Board is already required to assess the Veteran's total picture when assessing the extent of her neurological disabilities. Thus, while the results of neurological evaluations (including evidence addressing strength, reflexes and sensation) are most probative, any evidence addressing impairment may be (and was) addressed. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). TDIU Finally, when the Veteran submits evidence of a medical disability, and makes a claim for the highest rating possible, the Board is required to consider whether there is evidence that she is unemployable due to her service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this regard, the evidence indicates that she was temporarily unemployed in 2004, and she submitted a claim seeking TDIU benefits in August of that year. This claim was denied by the RO in a June 2006 rating decision and, as the Veteran did not appeal within a year from the time that decision was issued, it is now final. Moreover, the Veteran has not submitted new evidence since the RO's June 2006 decision to indicate that she is unemployable due to her service-connected disabilities. In fact, based on her statements at her hearing before the Board in August 2009, as well as a VA treatment note from October 2008, she has been employed since that time. As such, given that the RO adequately considered the issue of entitlement to TDIU in June 2006, which the Veteran failed to appeal, and given that she has not submitted evidence of unemployability since that time, the issue is not on appeal, and is not for consideration. In conclusion, based on evidence of record, the Board determines that a 10 percent rating, but no more, for neurological abnormalities in the Veteran's left lower extremity is warranted. However, a separate rating for neurological abnormalities in her right lower extremity or an increased rating on an extraschedular basis for the residuals of her pelvic fracture are not warranted. The appeal is denied to this extent. ORDER A rating in excess of 20 percent for pelvic and lumbar spine disability, characterized as residuals of a pelvic fracture, on an extraschedular basis, is denied A separate 10 percent rating, but no more, for a sciatic nerve disability in the left lower extremity, as associated with a service-connected lumbar spine disability, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs