Citation Nr: 1320189	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  12-32 020	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to a separate compensable rating for right lower extremity radiculopathy.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Kristy L. Zadora, Counsel


INTRODUCTION

The Veteran had active duty service from March 1953 to February 1955.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Houston, Texas Regional Office (RO) of the Department of Veterans Affairs (VA) which, in pertinent part, denied the Veteran's claim for an increased rating for spondylolisthesis, status-post surgical fusion with a residual scar and right lower extremity radiculopathy.

A review of the Virtual VA paperless claims processing system reveals VA treatment records dated through November 2012; such documents were considered in the March 2013 supplemental statement of the case (SSOC).

In February 2013, the Board denied the Veteran's claim for an increased rating for spondylolisthesis and awarded a separate rating for left lower extremity radiculopathy.  In addition, the Board determined that a separate rating for the Veteran's right lower extremity radiculopathy may be warranted and recharacterized the appeal to reflect such consideration.  The issue of entitlement to a separate rating for right lower extremity radiculopathy was then remanded to the Appeals Management Center (AMC) for additional development.

In April 2013, the Veteran waived his right to have VA wait a minimum of 30 days before certifying the appeal to the Board as well as his right to submit additional evidence for consideration by his RO.

The Board notes that the March 2013 SSOC contained a discussion regarding the Veteran's claim for an increased rating for left lower extremity radiculopathy.  However, the Board finally decided this issue in its February 2013 decision and such a discussion by the AMC was in error.

As a final preliminary matter, the Board notes that it referred a claim for a total disability rating based upon individual unemployability (TDIU) to the RO in its February 2013 decision for appropriate action.  It does not appear that this matter has been adjudicated.  Therefore, the Board is again referring this matter to the RO for appropriate action.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.

2.   Since the date of the Veteran's claim for an increased rating, the Veteran's right lower extremity radiculopathy is manifested by moderate incomplete paralysis, to include episodic absent deep tendon reflexes with subjective complaints of numbness and pain without muscle atrophy, sensory disturbances or constant pain.


CONCLUSION OF LAW

The criteria for a separate rating of 20 percent right lower extremity radiculopathy have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.20, 4.27, 4.120, 4.123, 4.124a, 8520 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.   Duties to Notify and Assist

With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for service connection, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) also require notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

Pre-rating letters dated in September 2009 and October 2009 fully satisfied the duty to notify provisions with regard to the Veteran's claim for an increased rating.  These letters detailed the elements of an increased rating claim, described the evidence and information necessary to substantiate the claim, and set forth the respective responsibilities of VA and the Veteran in obtaining such.  In addition, these letters provided the Veteran proper preadjudication notice under Dingess.

The Court previously held that to satisfy the first Quartuccio element for an increased compensation claim, section 5103(a) compliant notice must meet a four part test laid out in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) overruled the Vazquez-Flores test in part, striking the claimant-tailored and "daily life" notice elements. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  Recently, the Court issued an opinion incorporating those surviving portions of the first Vazquez-Flores decision, namely that VA must notify the claimant that 1) to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability, 2) a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment, and 3) provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation, and must also notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment.  See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 107 (2010) (Vazquez-Flores III). 

For the following reasons, the Board finds that the elements of the Vazquez-Flores test that remain under Vazquez-Flores III have either been met or that any error is not prejudicial with regards to the instant claim for an increased rating.

The first and third elements were met by the September 2009 and October 2009 notice letters.  They informed the Veteran that he needed to provide information showing his service-connected disability had worsened.  He was informed that such evidence could consist of a statement from his doctor or lay statements describing what individuals had observed about his disabilities.  He was told that he needed to provide VA information as to where he had received medical treatment, or that he could send VA any pertinent treatment records.  Examples of evidence needed to support the claim were provided, including physical and clinical findings, and statements from other individuals who could describe from their knowledge and personal observations the manner in which his disability had affected him.  He was also informed of what evidence VA would obtain on his behalf and what he needed to do to help VA process his claim.  In addition, the Board notes that the Veteran was provided notice that a disability rating would be determined by application of the ratings schedule and relevant diagnostic codes based on the extent and duration of the signs and symptoms of his disability and their impact on his employment.  As the Board finds that the Veteran had actual knowledge of the requirement to show worsening of the disability and the variety of the medical and lay evidence which could support his claim, any failure to provide him with adequate notice as to the Vazquez-Flores v. Peake elements is not prejudicial.  

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  In addition, the Veteran has not alleged prejudice with regard to any notice deficiency.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.  

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records, VA outpatient treatment records, and various private treatment records are in the claims file.  The Veteran was also provided VA examinations in October 2009, December 2009 and August 2012 and an addendum opinion was obtained in February 2013.  The Board finds that these VA examinations are adequate as the medical findings are stated in terms of conforming to the applicable criteria.  Massey v. Brown, 7 Vet. App. 204 (1994). 

Additionally, the Board finds there has been substantial compliance with its February 2013 remand directive.  The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.)  The record indicates that an addendum to a VA peripheral nerves examination was obtained in February 2013.  Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand.  See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders).   

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument and evidence in support of the appeals.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected. 

II.  Increased Rating Claim

A.  Applicable Statutes and Regulations 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

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. All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  Fenderson v. West, 12 Vet. App. 119 (1999).

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.

Lower extremity peripheral neuropathy is rated under the diagnostic code for paralysis of the sciatic nerve.

With regards to paralysis of the sciatic nerve, ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively.  A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy.  Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a, 8520. 

 In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120.  Under 38 C.F.R.        § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function.  With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves.  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. 

When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree.  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. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis.  38 C.F.R. § 4.123. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).  

B.  Right Lower Extremity Radiculopathy

A December 2009 VA examination report reflected the Veteran's complaints of pain in the hips and buttocks with any twisting as well as occasional shooting pains into his right lower extremity.  Physical examination found motor function to be "5/5" in all muscle groups while deep tendon reflexes were absent at the knees and ankles.

An August 2012 VA examination report reflected the Veteran's complaints of intermittent right lower extremity pain without constant pain, paresthesias, dysesthesias or numbness.  Muscle strength testing found hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion and great toe extension to be "5/5" on the right side.  There was no muscle atrophy found.  Right knee and ankle jerk was found to be 2+.  Sensory examination of the upper anterior thigh, thigh/knee, lower leg/ankle and ankle/toe were normal on the right.  The examiner determined that the Veteran's sciatic nerve was involved.

A February 2013 VA examination report indicated that the Veteran experienced moderate intermittent pain, that was usually dull, in the right lower extremity without constant pain, paresthesias and/or dysesthesias.  The examiner indicated that the Veteran had moderate radiculopathy in his right lower extremity.

With regards to the right lower extremity peripheral neuropathy, for the entire appeal period, the Veteran has subjectively complained of numbness and intermittent pain.  Muscle strength was found to be "5" without atrophy in the December 2009 and August 2012 VA examinations.  Sensation examination was found to be normal in August 2012.  Although knee and ankle reflexes were found to be 2+ in August 2012, such reflexes were found to be absent in December 2009.  In light of the objective evidence of episodic absent reflexes and the August 2012 examiner's determination that the Veteran suffered from moderate radiculopathy in his right lower extremity, a separate rating of 20 percent for moderate incomplete paralysis is warranted for the right lower extremity.  A rating in excess of 20 percent is not warranted as muscle atrophy, sensory disturbances and constant pain were not found on objective examination or alleged by the Veteran.  38 C.F.R.         § 4.124a, 8520.  

The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected right lower extremity peripheral neuropathy; however, the Board finds that his symptomatology has been stable throughout the appeal.  Therefore, assigning staged ratings for such disability is not warranted.

Additionally, the Board has contemplated whether this matter should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 
§ 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that 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.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's 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.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id. 

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected right lower extremity radiculopathy with the established criteria found in the rating schedule.  The Board finds that the Veteran's right lower extremity radiculopathy symptomatology is fully addressed by the rating criteria under which such disability is rated.  In this regard, all of the Veteran's neurology symptomatology are contemplated by the rating criteria, to include those symptoms which are not specifically enumerated.  There are no additional symptoms of his right lower extremity radiculopathy that are not addressed by the rating schedule.  Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability.  As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture.  Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). 

For all the foregoing reasons, the Board finds that a separate rating of 20 percent for right lower extremity radiculopathy, but no higher, is warranted.  See 38 U.S.C.A.    § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.  


ORDER

A separate rating of 20 percent for right lower extremity radiculopathy is granted, subject to the laws and regulations governing payment of monetary benefits.



____________________________________________
MARJORIE A. AUER 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs