Citation Nr: 1325085 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 07-00 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for radiculopathy of the left lower extremity. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from October 1973 to October 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This case was previously before the Board in October 2012, at which time the claims were remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case is once again before the Board for appellate consideration of the issues on appeal. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Radiculopathy of the left lower extremity is manifested by no more than subjective complaints of severe numbness and radiating pain, and objective evidence of occasional diminished sensation with some diminished deep tendon reflexes and muscle strength, resulting in no more than moderate incomplete paralysis. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8621 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify the Veteran was satisfied prior to the initial AOJ decision through a notice letter dated April 2005 that fully addressed all notice elements. Additional notice was provided in March 2006, February 2007, and March and August 2010. These letters informed the Veteran of what evidence was required to substantiate his increased evaluation claim, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained, as have Social Security Administration (SSA) disability records. He has not identified any additional records that should be obtained prior to appellate consideration. VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations in conjunction with his appeal. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). These VA examinations are adequate for the purposes of evaluating the Veteran's radiculopathy, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide a discussion of pertinent symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As a final note, the Board again observes this case was remanded by the Board in October 2012 for additional development. Specifically, the Board instructed that an additional VA examination be provided to address the Veteran's left lower extremity radiculopathy. The requested examination was provided in January 2013. The Board finds there has been substantial compliance with the prior remand, and adjudication of the instant claims may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Disability evaluations are determined by comparing a Veteran's present symptomatology 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. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) 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" of 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. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's radiculopathy of the left lower extremity has been assigned an evaluation of 20 percent disabling throughout the appeal period pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8621 (2012), pertaining to impairment of the external popliteal nerve. The Veteran contends he is entitled to an evaluation in excess of 20 percent for his radiculopathy of the left lower extremity. A 20 percent evaluation is warranted where there is moderate incomplete paralysis of the external popliteal nerve. A 30 percent evaluation is assigned where there is severe incomplete paralysis of the external popliteal nerve. A maximum 40 percent evaluation is warranted where there is complete paralysis of the external popliteal nerve, resulting in foot drop and slight droop of the first phalanges of all toes, inability to dorsiflex the foot, extension of the proximal phalanges of the toes is lost; abduction of the foot is lost, with adduction weakened; and anesthesia covers the entire dorsum of the foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8621. The term "incomplete paralysis" indicates impairment of function of a degree substantially less than the type of picture for complete paralysis given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. § 4.124a, Note. Terms such as "moderate," "moderately severe" and "severe" are not defined by the rating criteria. Rather than applying a mechanical formula, the Board must evaluate all of the evidence and render factual findings and a decision that is "equitable and just." See 38 C.F.R. § 4.6 (2012). Having considered the evidence of record under the rating criteria outlined above, the Board finds that an evaluation in excess of 20 percent for radiculopathy of the left lower extremity is not warranted at any point during the appeal period. In this regard, the Veteran's left lower extremity nerve disability is manifested by subjective complaints of radiating pain and numbness and objective evidence of occasional diminished sensation with some diminished deep tendon reflexes and muscle strength, resulting in no more than moderate incomplete paralysis. The report of a September 2005 VA examination notes the Veteran complained of pain radiating down the left leg on the back of the posterior thigh down to his great toe with some numbness in the area. On physical examination, he was able to heel and toe walk, had strength of 5/5 in the lower extremities with normal reflexes in the Achilles and patellar. The VA examiner determined the Veteran to have slight radicular symptoms including some numbness in the great toe. A January 2006 VA pain clinic note indicates the Veteran complained of a constant, sharp pain of an 8/10 intensity shooting through his left lower extremity. On physical examination, left lower extremity tingling and numbness were found; motor, reflex, muscle mass, gait and pulses were within normal limits. Also in January 2006, an SSA medical evaluation found the Veteran's gait to be normal, with the Veteran able to walk on heels and toes and perform tandem walking and squatting without difficulty. Strength and deep tendon reflexes were normal. In December 2006, the Veteran reported his leg pain and symptoms were worse than his low back pain and that he could walk only one block before leg pain began. Light touch, pin-prick, vibration and position senses were intact, and the left leg had normal and symmetric muscle bulk and tone. In addition, strength and reflex testing of the left lower extremity was normal. An April 2007 VA examination report notes the Veteran complained of progressively worsening left leg pain and numbness, leading to increased pain and weakness with walking one block, up and down stairs or upon lifting. Physical examination revealed normal muscle bulk and tone throughout, with normal strength at all levels except for the extensor hallucis longus (which serves to extend the great toe), which was found to be 3+/5 (capable of active movement against gravity). Reflexes were somewhat diminished with decreased sensation to light touch and pinprick around the left great toe and lateral aspect of the left leg. The VA examiner stated the Veteran was limited mostly by pain and sensory involvement. At an August 2007 VA spine examination, the Veteran related similar complaints. Physical examination revealed the Veteran was capable of standing on his heels and toes, with deep tendon reflexes slightly diminished at the knee and ankle. Muscle testing was normal throughout the left leg. The medical record indicates the Veteran has consistently claimed left leg pain and numbness, resulting in weakness while he walks. Objective findings have been similar throughout the appeal period. For instance, more recently, an August 2011 VA pain clinic note indicate the Veteran rated his pain as 7-8/10, and complained of a burning pain down the posterior thigh, down the left to the left foot. Objectively, the Veteran's gait was antalgic, and lower extremity strength was normal. Lateral and posterior left lower leg was numb when compared to the right, and patellar reflexes were somewhat diminished. Finally, the Veteran was provided a VA peripheral nerves examination in January 2013, at which he again complained of severe pain and numbness of the left lower extremity and required constant use of a cane to walk. Muscle strength was 4/5 (active movement against some resistance) throughout the left lower extremity without muscle atrophy. Reflexes were normal at the left knee and ankle, and sensory examination revealed normal results for the upper anterior thigh and thigh/knee, with diminished sensation at the lower leg/ankle and foot/toes. Severity evaluation for the lower extremity nerves revealed no more than moderate incomplete paralysis for any of the lower extremity nerves. Importantly, the Board observes the VA examiner stated that the reports of pain and decreased sensation are subjective findings, in that the Veteran himself reports the results. The examiner further noted that there is no objective evidence of a left lumbosacral radiculopathy, as the result EMG testing was a normal study. The Board has reviewed the entire record in determining the severity of the Veteran's radiculopathy of the left lower extremity, and has considered other potentially applicable diagnostic codes pertaining to the nerves of the lower extremities. See 38 C.F.R. § 4.124a, Diagnostic Codes 8520-8530. The Board acknowledges the Veteran's complaints of severe pain and radicular symptoms reflected in treatment records and VA examinations throughout the period on appeal. However, despite the Veteran's complaints of lower extremity pain and radicular symptoms, when viewed in light of the record as a whole, in particular the objective findings on physical examination and electrodiagnostic testing, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran's radiculopathy of the left lower extremity more closely approximates "moderately severe" or "severe" incomplete paralysis of the any affected nerve of the left lower extremity. As the Veteran's radiculopathy is found to result in no more than "moderate" incomplete paralysis, there is no other potentially applicable diagnostic code that would result in an evaluation greater than 20 percent. In conclusion, the Board finds that the objective medical evidence of record fails to demonstrate any limitation of function beyond diminished sensation and some diminished deep tendon reflexes and muscle strength, no more than moderate in degree. Furthermore, as noted above, electrodiagnostic testing conducted in January 2013 revealed no objective evidence of radiculopathy of the left lower extremity. Therefore, the Board finds the preponderance of the evidence weighs against a finding that the Veteran's radiculopathy of the left lower extremity more closely approximates "moderately severe" or "severe" incomplete paralysis of the any nerve of the left lower extremity; thus, he is not entitled to an initial rating in excess of 20 percent for this disability any point in the appeal period. See Fenderson, supra. The benefit of the doubt rule does not apply, and the Veteran's claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected disability. As discussed above, the Board finds that the schedular rating criteria contemplate the Veteran's service-connected radiculopathy of the left lower extremity. The rating criteria contemplate subjective complaints of pain and sensory involvement, as well as objective findings of diminished muscular strength and deep tendon reflexes. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An evaluation in excess of 20 percent for radiculopathy of the left lower extremity is denied. REMAND Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Prior to February 19, 2008, the Veteran is service-connected for scoliosis of the lumbar spine, evaluated as 20 percent disabling; radiculopathy of the left lower extremity, evaluated as 20 percent disabling; amputation of the right middle finger at the distal phalanx, evaluated as 10 percent disabling; and hemorrhoids, evaluated as noncompensable. His combined service-connected rating is 40 percent during this period. As of February 19, 2008, his service-connected scoliosis of the lumbar spine was increased to 40 percent disabling, and his overall evaluation increased to 60 percent. The schedular threshold for TDIU has not been met at any point during the appeal period. 38 C.F.R. §§ 4.16, 4.25. Consideration of an award of TDIU must also take into account whether a TDIU is warranted on an extraschedular basis. However, the Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v Principi, 15 Vet. App. 1 (2001). Even though a November 2008 SSA determination and January 2013 VA opinion find the Veteran may be capable of sedentary employment, assuming he would be able to move around his work area, the Board must also consider whether such residual employment is consistent with his prior work experience and education. The Veteran has reported that his highest level of education is high school equivalency (through completion of a General Educational Development (GED) certificate), and that his only work experience, dating to at least March 1999, is as a warehouse worker and maintenance. See December 2005 VA Form 21-8940. Given the evidence of record and the provisions of 38 C.F.R. § 4.16(b), a remand is necessary to allow the AOJ to submit the Veteran's claim to the Director of Compensation and Pension for a determination as to whether a TDIU should be awarded on an extraschedular basis. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's TDIU claim to the Director of Compensation and Pension for a determination as to whether the Veteran is entitled to TDIU on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). A full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue must be provided. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim for a TDIU based on the entirety of the evidence. If the benefit sought on appeal is not granted to the appellant's satisfaction, provide him and his representative with a supplemental statement of the case. Allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs