Citation Nr: 1324385 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-02 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from August 1954 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The rating decision granted service connection for radiculopathy of the left lower extremity and assigned a 10 percent evaluation. In an April 2012 decision, the Board granted an initial rating of 20 percent, but not higher, for radiculopathy of the left lower extremity. An appeal followed to the U.S. Court of Appeals for Veterans Claims (Court) and the parties to that appeal thereafter jointly moved the Court to vacate and remand the issue of entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity. In a May 2012 order, the Court granted the parties' motion. The Board remanded the issue for additional development in April 2013. A June 2013 supplemental statement of the case denied an initial rating in excess of 20 percent. The case is now before the Board for final appellate consideration. 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). FINDING OF FACT The competent medical, and competent and credible lay, evidence of record demonstrates that the Veteran's radiculopathy of the left lower extremity does not result in severe incomplete paralysis of the external popliteal nerve. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.124a, Diagnostic Code 8521 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). This appeal arises from the Veteran's disagreement with an initial evaluation following a grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA did advise the Veteran of what is necessary to obtain the maximum benefits allowed by the evidence and the law. A December 2009 statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant law concerning the evaluation of radiculopathy of the left lower extremity under Diagnostic Code 8521. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve an increased initial evaluation for radiculopathy of the left lower extremity. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA and private medical records, VA examination reports, and the transcript of a September 2010 hearing before the undersigned Veterans Law Judge. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The development requested by the prior remands has been conducted. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. VA examinations were conducted in October 2008, January 2011 and May 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations conducted in this case are more than adequate, as the reports reflect a review of the Veteran's claims file, consider all of the pertinent evidence of record, and provide rationales for any opinions offered. The examiners consider the Veteran's medical history, including his lay reports of his symptomatology; describe the Veteran's disability in sufficient detail; and fully describe the functional effects caused by the Veteran's disability. Stefl v. Nicholson, 21 Vet. App. 120 (2007). In correspondence received in July 2013, the Veteran contended that the May 2013 VA examination was inadequate, and that the examiner was not familiar with the procedural history of the Veteran's claim. Review of the May 2013 examination report reveals that all subjective and objective findings necessary for adjudication of the Veteran's claim were observed and recorded, and thus the examination appears complete and adequate. Accordingly, a new examination is not necessary for evaluation of the Veteran's claim. Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Court held in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) that there are two duties imposed by 38 C.F.R. 3.103(c)(2), the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked, that are not impacted by the Veteran's receipt of a VCAA-compliant notice letter. Here, during the hearing, although the Veterans Law Judge did not explicitly note the bases of the prior determinations or note the elements that were lacking to substantiate the Veteran's claim, the Veteran's representative demonstrated actually knowledge of this information. The representative's questions specifically elicited responses designed to show that the Veteran's radiculopathy of the left lower extremity warranted a higher evaluation. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Accordingly, the Veteran is not shown to be prejudiced on this basis. In addition, the Veterans Law Judge sought to identify any pertinent, outstanding evidence that might have been overlooked. The Veterans Law Judge specifically asked the Veteran regarding when he was previously examined by VA and whether the Veteran would be willing to appear for another examination. Accordingly, the Veteran is not shown to be prejudiced on this basis. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes. The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran seeks an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity. The Veteran's left lower extremity radiculopathy is currently evaluated pursuant to 38 C.F.R. § 4.124, Diagnostic Code 8521. Under 38 C.F.R. § 4.124a, Diagnostic Code 8521, a 20 percent disability rating is warranted for moderate incomplete paralysis of the external popliteal nerve, and a 30 percent disability rating is warranted for severe incomplete paralysis of the external popliteal nerve. A 40 percent disability rating is warranted when there is complete paralysis of the external popliteal nerve (common peroneal); foot drop and slight drop of first phalanges of all toes, an inability to dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; or anesthesia covering the entire dorsum of the foot and toes. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against entitlement to an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity. The evidence of record simply does not show that this disability meets the criteria for a higher evaluation. A private hospital note, dated in February 2007, reveals that the Veteran had burning pain that radiated down the lateral left thigh and leg to the side of the foot. Physical examination revealed sensation was subjectively decreased to pinprick of the anterolateral left shin. Reflexes were zero to trace and symmetric. Plantar responses were downgoing. A physical therapy evaluation, dated in February 2007, revealed that the Veteran had undergone an L3-4, L4-5 decompression. Neurological exams revealed tone within functional limits, no atrophy, tightness bilateral gastrocnemius, sensation was numb bilateral feet, proprioception was decreased bilateral feet, and no difficulties were noted with reflexes and palpation. Strength was within functional limits for the hips and knees bilaterally. Strength was 3/5 for the ankle/foot, bilaterally. In an occupational therapy note, dated in February 2007, the Veteran was noted to have functional but dulled sensation to the bilateral lower extremities. A follow up note, dated in April 2007, reveals that reflex testing showed the knee jerks to be trace and the ankle jerks to not be elicited. In December 2007 the Veteran had decreased deep tendon reflexes in the knees and ankles. He had normal muscle strength in the lower extremities and normal sensation to light touch, equal bilaterally. His balance was normal although the Veteran was unable to walk on his tip-toes, falling to the side. The Veteran was diagnosed, in part, with chronic low back pain with bilateral radiculopathy. In October 2008 the Veteran was afforded a VA C&P examination. The Veteran complained of numbness three to four inches above the left ankle down to the entire foot, constant and worse when he walks. He complained of tingling sensation constant in the same area of the numbness and worse when he walks. He complained of sharp burning pain, left buttock, left posterior/lateral thigh, lateral side of the left calf to the ankle, this is constant and increased with walking. He complained of weakness and heaviness of the legs from the knees down to the feet. He reported no flare-ups. The effect on daily activities was none, except he did not walk as much. He avoided walking more than 100 feet at a time. He stopped mowing the yard. He avoids lifting his grandson due to decreased strength in the legs. Physical examination revealed that the feet to upper ankles (bilateral peroneal and tibial nerves) and lateral thighs (bilateral lateral femoral cutaneous nerves) were affected bilaterally. There was absent sensation to light touch on all the toes of the left foot to the ankle. There was absent sensation to pinprick on the left lateral thighs. Absent sensation to pinprick on all the toes of both feet to the upper ankle. There was no increased sensitivity to touch on the left foot and leg. Muscle strength of the left side was normal hip flexion, knee flexion, ankle flexion, and great toe flexion and extension. There was no muscle wasting or atrophy. No joint was affected by the peripheral nerve condition. The Veteran was diagnosed with sciatica symptoms/L5-S1 radiculopathy of the left lower extremity. In February 2009 and April 2009 the Veteran was administered caudal epidural injections for chronic low back pain with radiculopathy not responsive to conservative therapy, postlaminectomy syndrome. In March 2009 the Veteran reported lower back pain constant aggravated by any activity that radiated down both legs with walking. The Veteran underwent a private electrodiagnostic/nerve conduction study in May 2006. Relevant to the Veteran's claim for an evaluation in excess of 10 percent disabling for left lower extremity radiculopathy, sensory examination was noted to reveal bilateral sural nerve action potentials unobtainable, left peroneal motor distal latencies were normal with diminished amplitudes and normal velocities, left anterior tibial motor distal latencies were normal, and bilateral tibial H-reflexes were unobtainable. EMG of the left revealed no response obtained from EDB. Positive fibrillation potentials were obtained from the anterior tibialis at +1. Some complex repetitive discharges were also noted at the short head of the biceps femoris. On voluntary motor unit morphologies, again, no response was obtained from EDB, increased amplitude and decreased recruitment over the anterior tibialis with poor effort over the medial gastrocnemius and increased amplitudes and decreased recruitment over the short head of the biceps femoris. The Veteran underwent a private medical examination in June 2009. The Veteran described neurogenic claudication with "rubbery legs" with prolonged standing or walking. In addition, physical examination revealed strength of 5/5 and reflexes were unobtainable at the knees and ankles. In December 2009, physical examination revealed power was 5/5 except for right lower extremity foot dorsal and plantar flexion was 4/5. Muscle tone was normal and deep tendon reflexes were +1 and equal except for ankles which were 0. Sensory examination showed a decrease on L5-S1 bilaterally and stocking distribution. The Veteran experienced claudication that is relieved to some degree by standing but relieved faster by sitting. He could also get some relief by flexing his back. He additionally had burning paresthesias of both feet and numbness for several years. The Veteran was afforded a VA C&P examination in January 2011. The Veteran reported that as he rubs his hand on the left anterior thigh area there will be pain running down the rest of the right leg. There was weakness also as he comes with walking. Also the Veteran stated that the problems actually involve both legs with the sensations and weakness starting about 2005 or so. Walking makes the problem worse about 15 to 20 feet. About 5 to 10 minutes after the cessation of walking the pain goes away but there will be a tingling sensation. The Veteran noted the presence of discomfort more so when he stands. The Veteran indicated that the condition became progressively worse and that he is treated with medication. The Veteran reported numbness, paresthesias, leg or foot weakness, falls, and unsteadiness. The pain was daily and radiated to the right leg to the mid calf and the left leg to the mid calf. The radiating pain was burning in nature. The Veteran used a cane and a walker and was able to walk 50 to 70 feet. Knee jerk and ankle jerk were 2+ bilaterally. Plantar flexion (Babinski's) was normal bilaterally. Sensory examination revealed that the right and left lower extremities were affected from L4 to S1. There was decreased to absent vibration sense on the right and left feet and diminished on the lower third of both legs. Position sense was normal. There was decreased pinprick or pain sensation on both feet and from the mid calves to and including the right/left feet. There was diminished light touch sensation on both feet and from the mid calves to and including the right/left feet. There were no dysesthesias. Motor examination revealed that the Veteran had active movement against full resistance with hip flexion, hip extension, knee flexion, knee extension, ankle dorsiflexion, ankle plantar flexion, and great toe extension bilaterally. Muscle tone was normal. There was no muscle atrophy. The Veteran's gait was antalgic and the Veteran had an imbalance. He lost his balance while doing the tandem walk but was able to recover with the examiner's assistance prior to falling down. Lasegue's sign was not positive. The Veteran was diagnosed with lumbar spine degenerative disease with spinal stenosis/disc surgery. Pursuant to the Board's April 2013 remand, the Veteran was provided a VA C&P examination in May 2013. The report sets forth the relevant history, the Veteran's subjective complaints, and examination results. The Veteran stated that he was currently having bilateral leg pain, numbness/tingling, weakness and a feeling of heavy legs. He stated that he had these symptoms for some time. He had them at all times, and they got worse with standing for long periods or walking. The diagnosis was IVD. The report provides that the Veteran had mild constant pain, mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the left lower extremity. He had no other signs or symptoms of radiculopathy. The Veteran had normal strength (5/5) in left hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion and great toe extension. The Veteran had no muscle atrophy. The Veteran had hypoactive reflexes of the left knee and ankle. He had normal sensation to light touch of the left upper anterior thigh, and decreased sensation to light touch of the left thigh/knee, lower leg/ankle and foot/toes. There was involvement of the L4/L5/S1/S2/S3 nerve roots (sciatic nerve). The examiner specifically indicated that the severity of the left radiculopathy was moderate. He stated that the Veteran did not have any other neurologic abnormalities. The examiner stated that he had reviewed the Veteran's claims file and all previous neuropathy and back VA C&P examination reports. He specifically stated that there had been no change in the Veteran's symptoms as they had existed from March 7, 2006, to the present. The Veteran continued to have neuropathy in his bilateral legs. He had good motor function with complaints of sensory abnormalities as noted, and unchanged on previous exams as well. The examiner stated that the rating criteria for the severity of the common peroneal nerve paralysis fully addressed the Veteran's manifestations and symptomatology as they existed from March 7, 2006, to the present. With regard to employment, the Veteran had no functional impairment arising from his aforementioned service-connected conditions. He would be able to perform the duties associated with sedentary employment except that there may need to be standing, walking and weight-lifting accommodations with his duties. The Veteran had radiculopathy. However, his most recent neurology consults and again his examination that day did not show any particular problems with his motor or sensory functions from a nervous system or musculoskeletal point of view that would prevent the Veteran from being employed. The Board finds that the preponderance of the evidence is against an initial evaluation in excess of 20 percent for left lower extremity radiculopathy. During the entire period on appeal, the Veteran's left lower extremity radiculopathy manifested symptoms of pain, decreased sensation, normal to slightly reduced muscle strength, and normal to absent reflexes. The Veteran's left lower extremity radiculopathy did not manifest any muscle atrophy, loss of muscle tone, or foot drop. As the symptoms are mainly sensory in nature, there are only minimal muscle strength declines in the ankles, and reduced reflexes, the Board finds that the symptoms are predominantly moderate in nature. Moreover, the May 2013 VA examiner also described the Veteran's radiculopathy as moderate. There is simply no indication that the Veteran has symptoms more nearly approximate to severe incomplete paralysis or paralysis of the nerve. The Board is aware of the Veteran's complaints as to the severity of his radiculopathy of the left lower extremity. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). 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 him through his senses. Layno, 6 Vet. App. at 470. The Veteran is not, however, competent to identify a specific level of disability according to the appropriate diagnostic code. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Competent evidence concerning the nature and extent of the Veteran's radiculopathy of the left lower extremity has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the medical records) directly address the criteria under which this disability is evaluated. As noted above, the medical findings do not support a higher evaluation. The rating criteria contemplates incomplete paralysis of the external popliteal nerve. The symptoms associated with the Veteran's radiculopathy of the left lower extremity (i.e. pain, decreased sensation, normal to slightly reduced muscle strength, and normal to absent reflexes) are contemplated by the rating criteria, and the medical evidence fails to show anything unique or unusual about the Veteran's disability that would render the schedular criteria inadequate. As the available schedular criteria for this service-connected disability are adequate, referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that the record does not raise a claim of entitlement to a total rating for compensation based on individual unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not asserted, and the evidence does not show, that his radiculopathy of the left lower extremity renders him unable to secure and follow a substantially gainful occupation. None of the VA examinations of record indicate that the Veteran is unemployable due to his service-connected disabilities. The May 2013 VA C&P examination report specified that the most recent neurology consults and the current examination did not show any particular problems with his motor or sensory functions from a nervous system or musculoskeletal point of view that would prevent the Veteran from being employed. In addition, a treatment note dated in October 2011 indicates that the Veteran's wife reported that the Veteran was still employed part time in a security job and was not using his cane. In sum, the medical evidence demonstrates that the Veteran is not entitled to an initial evaluation in excess of 20 percent for radiculopathy of the left lower extremity. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An initial rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs