Citation Nr: 1320153 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 08-26 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a bilateral lower extremity disorder (excluding radiculopathy and peripheral neuropathy). 3. What evaluation is warranted for left lower extremity radiculopathy from July 2, 2007? 4. What evaluation is warranted for right lower extremity peripheral neuropathy from June 20, 2008? 5. What evaluation is warranted for left upper extremity radiculopathy from June 20, 2008? 6. What evaluation is warranted for right upper extremity radiculopathy from June 20, 2008? REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from July 1989 to April 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, and a May 2009 rating decision of Roanoke, Virginia RO. The December 2007 rating decision, in pertinent part, granted entitlement to service connection for left lower extremity radiculopathy, and assigned 10 percent rating effective July 2, 2007. The May 2009 rating decision granted entitlement to service connection for left and right upper extremity radiculopathy, and for peripheral neuropathy of the right lower extremity. The May 2009 rating decision assigned 10 percent ratings for each effective June 20, 2008. The record reflects that the Veteran indicated multiple times that he desired a Board hearing. His hearing request was withdrawn by his representative in November 2011. See 38 C.F.R. § 20.702 (2012). In a March 2012 decision the Board denied entitlement to increased ratings for each of the disorders noted on the title page. The Veteran appealed and in an August 2012 decision the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand. As noted in the March 2012 Board decision the issues of entitlement to service connection for a left shoulder disability, and a bilateral lower extremity disorder (excluding radiculopathy and peripheral neuropathy) were remanded for further development. Given that the development ordered in March 2012 is not complete, further action is required. are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. Between July 2, 2007 and February 23, 2011, the Veteran's left lower extremity radiculopathy was not manifested by at least moderate, incomplete paralysis. 2. Effective February 24, 2011 the Veteran's left lower extremity radiculopathy was manifested by no more than moderate, incomplete paralysis 3. Between June 20, 2008 and February 23, 2011, the Veteran's right lower extremity peripheral neuropathy was not manifested by at least moderate, incomplete paralysis. 4. Effective February 24, 2011 the Veteran's right lower extremity radiculopathy was manifested by no more than moderate, incomplete paralysis 5. Between June 20, 2008 and February 23, 2011, the Veteran's left upper extremity radiculopathy was not manifested by at least moderate, incomplete paralysis. 6. Effective February 24, 2011, the Veteran's left upper extremity radiculopathy was manifested by no more than moderate incomplete paralysis. 7. Between June 20, 2008 and February 23, 2011, the Veteran's right upper extremity radiculopathy was not manifested by at least moderate, incomplete paralysis. 8. Effective February 24, 2011, the Veteran's right upper extremity radiculopathy was manifested by no more than moderate, incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for left lower extremity radiculopathy between July 2, 2007 and February 23, 2011, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8521 (2012). 2. The criteria for an initial 20 percent evaluation for left lower extremity radiculopathy from February 24, 2011, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8521. 3. The criteria for an initial evaluation in excess of 10 percent for right lower extremity peripheral neuropathy between June 20, 2008 and February 23, 2011 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). 4. The criteria for an initial 20 percent evaluation for right lower extremity peripheral neuropathy from February 24, 2011 are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 5. The criteria for an initial evaluation in excess of 10 percent for left upper extremity radiculopathy between June 20, 2008 and February 23, 2011 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8515 (2012). 6. The criteria for an initial 20 percent evaluation for left upper extremity radiculopathy from February 24, 2011 are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8515. 7. The criteria for an initial evaluation in excess of 10 percent for right upper extremity radiculopathy between June 20, 2008 and February 23, 2011 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8515. 8. The criteria for an initial 30 percent evaluation for right upper extremity radiculopathy effective February 24, 2011 are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8515. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) As service connection, initial ratings, and effective dates have been assigned for the radiculopathy and peripheral neuropathy claims, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. The claims file contains the Veteran's VA medical records. VA provided the Veteran with examinations in August 2007, January 2009, and February 2011. On review, the examinations appear adequate for rating purposes. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). II. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2011). If there is a question as to which evaluation to apply to the veteran's disability, 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. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Peripheral Neuropathy/Radiculopathy of the Upper and Lower Extremities The Veteran has also claimed entitlement to initial ratings in excess of 10 percent for peripheral neuropathy of the right lower extremity, and radiculopathy of the left lower extremity and both upper extremities. Peripheral neuropathy of the right lower extremity is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. The left lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8521. Radiculopathy of the left and right upper extremities are each separately rated under 38 C.F.R. § 4.124a, Diagnostic Code 8515. The effective date for the left lower extremity radiculopathy is July 2, 2007, while the effective date of the remaining disabilities is June 20, 2008. Diagnostic Code 8520 assigns a 10 percent rating for mild, incomplete paralysis of the sciatic nerve. A 20 percent rating is assigns for moderate, incomplete paralysis. A 40 percent evaluation is in order for moderately severe incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8521 assigns a 10 percent rating for mild, incomplete paralysis of the external popliteal nerve. A 20 percent rating is assigns for moderate, incomplete paralysis. A 30 percent rating is assigned for severe incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8521. The ratings assigned under Diagnostic Code 8515 vary according to whether the major (dominant) or minor (non-dominant) extremity is being evaluated. Mild, incomplete paralysis of either extremity warrants a 10 percent rating. Moderate, incomplete paralysis is assigned a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Severe incomplete paralysis is assigned a 40 percent rating for the minor extremity and a 50 percent rating for the major extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Words such as 'mild,' 'moderate,' and 'marked' are not defined in the Rating Schedule. 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. Each of the disabilities at issue is currently evaluated as causing mild, incomplete paralysis. The next higher rating for each of these disabilities requires moderate, incomplete paralysis. The August 2007 VA examination report notes impaired vibration, pain (pinprick), and light touch in the lower left extremity but the appellant was otherwise normal for the remaining extremities. The examiner noted that the impairment was in the left foot to mid tibia. All reflexes were hypoactive on examination. Detailed motor examination showed active movement against full resistance for all movements except for left knee extension, which showed active movement against some resistance. The January 2009 VA examination report notes that the Veteran described symptoms that varied from numbness to right foot pain. He reported that his symptoms were now constant. On examination, bilateral hand strength was 4+/5, and right lower extremity strength was 5/5. A sensory function examination of the upper extremities revealed that vibration was decreased at the wrist and metacarpophalangeal joints, and absent at the proximal interphalangeal joints. Pain was decreased in the distal anterior forearm and metacarpophalangeal and distal interphalangeal joints. The right upper extremity showed decreased sensation to light touch at the anterior wrist and metacarpophalangeal joints to distal interphalangeal joints, while it was decreased in the left upper extremity on the wrist, forearm, and metacarpophalangeal joints. Position sense was normal bilaterally. The anterior forearm was also decreased to sharp/dull. There was no specific radicular pattern. The right lower extremity sensory function report notes absent ankle and foot vibration. Pain was decreased on the lateral lower leg but was absent on the dorsal foot. Light tough was decreased on the lateral lower leg. Position sense testing produced inconsistent response, with great toe abnormality. The sural and peroneal nerves were affected. Detailed reflex examination showed 1+ reflexes throughout. Babinski reflex was normal bilaterally. The Veteran's gait was antalgic and he used a cane. The February 24, 2011 VA examination report notes that the Veteran described his bilateral hand and foot symptoms as a pins and needles stabbing with a burning/pain sensation in both hands and both feet to bilateral mid calves. Reportedly, his symptoms were now constant and current medications did not provide adequate pain control. He described sharp neck pain that radiated to the upper extremities, with right arm pathology being worse than the left. On examination, all of the Veteran's reflexes were hypoactive but plantar flexion was normal. Sensory examination of the upper extremities and the left lower extremity revealed normal findings to vibration, pain/pinprick, position sense, and light touch tests. There was no dysthesias. The right lower extremity showed that the small nerve fiber was affected. There was decreased response to vibration at the right fourth and fifth toes. Pain/pinprick, position sense, and light touch were normal. There was no dysthesia. Detailed motor examination findings were of active movement against some resistance (4/5) bilaterally for all upper and lower extremities. The Veteran demonstrated an unsteady tandem gait that was slow and guarded with a cane. Nerve conduction study findings included normal left and right peroneal motor and left and right sural sensory nerves. There was no delayed latency, increased amplitude, delayed latency and decreased amplitude, decreased latency and decreased conduction velocity, or decreased amplitude and decreased conduction velocity was noted. A low conduction velocity was noted in the left and right tibial motor. All electromyography findings were normal. The examiner diagnosed left lower extremity radiculopathy, right lower extremity peripheral neuropathy, and bilateral upper extremity radiculopathy. She noted that these disabilities caused increased absenteeism with the appellant's usual occupation. They also caused decreased mobility, problems with lifting and carrying, decreased strength, and pain. The lower extremity disabilities caused problems with prolonged standing and walking, while the upper extremity disabilities caused difficulty with lifting and manual dexterity to run wires as a cable technician. Based on the above, the Board finds that ratings in excess of 10 percent are not warranted for any of the Veteran's service-connected peripheral neuropathy or radiculopathy disabilities prior to February 24, 2011. Simply put, the degree of any incomplete paralysis shown was no greater than mild. Clinical examination showed 1+ reflexes throughout, and normal Babinski reflexes were shown in the lower extremities. While the Veteran did report pain, and while decreased sensation to light touch was present in the upper extremities, position sense was normal bilaterally. Most significantly, evidence suggestive of moderate incomplete paralysis was never shown in any affected extremity. Hence, prior to February 24, 2011, the Board finds that the assigned 10 percent evaluations adequately compensated the Veteran's radiating pain secondary to his cervical and lumbar spine disabilities. 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Codes 8515, 8520, 8521. Effective February 24, 2011, however, the Board will resolve reasonable doubt and assign a 20 percent rating for each affected lower extremity, a 20 percent rating for the left upper extremity, and a 30 percent rating for the right upper extremity. In this regard, the February 2011 examiner found that the disorders caused decreased mobility, problems with lifting and carrying, decreased strength, and pain. Further, the lower extremity disabilities caused problems with prolonged standing and walking, while the upper extremity disabilities caused difficulty with lifting and manual dexterity to run wires in his job as a cable technician. Additionally, the Veteran noted "burning/pain sensation in both hands and both feet to bilateral mid calves," and pain was constant and not relieved by current pain medications. In light of these findings, the Board will resolve reasonable doubt and assign increased ratings for each extremity effective February 24, 2011. The Board, however, finds no evidentiary basis for the assignment of any higher rating in any affected extremity from February 24, 2011. At no time since February 24, 2011 did the appellant show evidence of moderately severe incomplete paralysis of the sciatic nerve, severe incomplete paralysis of the external popliteal nerve, or severe incomplete paralysis of the median nerve. Indeed, at worst, examiners have described any impairment as moderate. While pain, decreased sensation, decreased mobility, problems with lifting and carrying, and decreased strength were present in February 2011, which in turn caused problems with prolonged standing and walking, there were no other signs that were suggestive of incomplete paralysis. By definition "paralysis" means the loss or impairment of motor function. Dorland's Illustrated Medical Dictionary, 1364 (30th ed., 2003). At no time has any examiner found motor function impairment that suggests a greater degree of disability than that acknowledged in this decision. Extraschedular Evaluations In reaching these decisions the Board 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). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). As discussed above, the rating criteria for each disorder addressed reasonably describes the Veteran's disability levels and symptomatology. As his disability picture is contemplated by the rating schedule, the assigned schedular evaluations are adequate, and no referral for extraschedular evaluation is required. Id. ORDER Entitlement to an initial evaluation in excess of 10 percent for left lower extremity radiculopathy from July 2, 2007 to February 23, 2011, is denied. Entitlement to an initial 20 percent evaluation since February 24, 2011, for left lower extremity radiculopathy is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial evaluation in excess of 10 percent, for right lower extremity peripheral neuropathy from June 20, 2008 to February 23, 2011 is denied. Entitlement to an initial 20 percent evaluation, for right lower extremity peripheral neuropathy from February 24, 2011 is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial evaluation in excess of 10 percent from June 20, 2008 to February 23, 2011, for left upper extremity radiculopathy is denied. Entitlement to a 20 percent evaluation since February 24, 2011, for left upper extremity radiculopathy is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial evaluation in excess of 10 percent from June 20, 2008 to February 23, 2011, for right upper extremity radiculopathy is denied. Entitlement to a 30 percent evaluation since February 24, 2011, for right upper extremity radiculopathy is granted subject to the laws and regulations governing the award of monetary benefits. REMAND As noted in March 2012, the Veteran claims entitlement to service connection for left shoulder compression, to include as secondary to residuals of a C2-C3 compression fracture with traumatic spondylolisthesis; and for a bilateral leg disability, other than radiculopathy and peripheral neuropathy. After reviewing the evidence, the Board in March 2012, found further development necessary. As the development ordered remains incomplete, these issues must again be remanded. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must schedule the Veteran for appropriate VA examinations to determine the nature and etiology of any diagnosed left shoulder disability, and any diagnosed bilateral leg disability, to include any leg length discrepancy and bursitis of the knees, but not including peripheral neuropathy and radiculopathy. After diagnosing any pertinent disabilities, the examining physician is to render specific opinions as to each of the following: (a) Is it at least as likely as not, i.e., is there a 50 percent probability or more, that any diagnosed left shoulder or bilateral leg disability was incurred during the Veteran's service? (b) Is it at least as likely as not, i.e., is there a 50/50 probability or greater, that any diagnosed disability was incurred secondary to a service-connected disability, to include residuals of a C2-C3 compression fracture with traumatic spondylolisthesis? All opinions expressed must be accompanied by a complete and full written rationale with evidence in the claims file and sound medical principles. 2. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 3. Upon completion of the above requested development and any additional development deemed appropriate, the RO/AMC should readjudicate the remanded issues. All applicable laws and regulations should be considered. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs