Citation Nr: 1325338 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 04-21 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE 1. Entitlement to an initial rating higher than 20 percent for lumbosacral strain/sprain with disc herniation at L4-L5. 2. Entitlement to an initial rating higher than 10 percent for lumbar radiculopathy of the left lower extremity prior to January 29, 2013. 3. Entitlement to an initial rating higher than 20 percent for lumbar radiculopathy of the left lower extremity since January 29, 2013. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to October 2002. This appeal comes to the Board of Veterans' Appeals (Board) from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In April 2011, the Veteran confirmed that he was withdrawing his request for a Board hearing. In August 2007, October 2010 and June 2012, the Board remanded these issues for further development. Additional documents in the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal. The issue of entitlement to an initial rating higher than 20 percent for lumbosacral strain/sprain with disc herniation at L4-L5 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. FINDINGS OF FACT 1. Prior to January 29, 2013, lumbar radiculopathy of the left lower extremity was manifested by mild incomplete paralysis. 2. Since January 29, 2013, lumbar radiculopathy of the left lower extremity is manifested by incomplete paralysis of moderate severity. CONCLUSIONS OF LAW 1. Prior to January 29, 2013, the criteria for a rating in excess of 10 percent for lumbar radiculopathy of the left lower extremity were not met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.124a, Diagnostic Code 8521 (2012). 2. Since January 29, 2013, the criteria for a rating in excess of 20 percent for lumbar radiculopathy of the left lower extremity are not met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.124a, Diagnostic Code 8521 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the Veteran with the notice required under the VCAA by letter dated in January 2003. Although the letter provided adequate notice with respect to the evidence necessary to establish a claim for service connection, it did not provide notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. See Dingess, supra. The Board notes, however, that the Veteran is challenging the disability evaluation assigned following the grant of service connection. In Dingess, the U.S. Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, supra. at 490-191. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). VA has satisfied its duty to assist the Veteran under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. In connection with the current appeal, available treatment records have been obtained. We also note that the Veteran has been afforded appropriate and adequate VA examinations as they reflect a pertinent medical history, review of the documented medical history, clinical findings, a diagnosis, and opinions supported by medical rationale. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. ANALYSIS Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The RO has assigned a staged rating. As the Board finds that the Veteran's disability has significantly changed, a staged rating is warranted. The Veteran appeals the denial of a rating higher than 10 percent disabling for lumbar radiculopathy of the left lower extremity prior to January 29, 2013 and 20 percent thereafter. The Veteran's disability has been evaluated under 38 C.F.R. § 4.124a, DC 8521, for the external popliteal nerve (common peroneal). The rating schedule provides that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Under 8521, a 40 percent rating is assigned for paralysis involving foot drop and slight drop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. Severe incomplete paralysis warrants assignment of a 30 rating. Moderate incomplete paralysis warrants assignment of a 20 rating. Mild incomplete paralysis warrants assignment of a 10 percent rating. The rating schedule also provides the following guidance in evaluating the severity of disabilities of peripheral nerves: Neuritis, cranial or peripheral, 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. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. 38 C.F.R. § 4.124a indicates that the term "incomplete paralysis," contemplates a degree of lost or impaired function substantially less than the type 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 wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. During the June 2003 examination, the Veteran complained of left foot numbness mainly over the medial aspect of the calcaneus. Parathesia of left foot was assessed. In August 2003, motor examination showed full strength throughout with no atrophy or fasciculation. DTRs were 2+ throughout including the ankles. Toes were down going clearly. Sensory examination showed diminished light touch and pinprick in the medial aspect of the left foot, below the ankle, as well as diminished in the fourth and fifth toe on the right. EMG testing in September 2003 was consistent with mild chronic left L5 radiculopathy, mild chronic right L4 radiculopathy and borderline chronic bilateral S1 radiculopathies. The Veteran expressed in September 2003 that he was experiencing a loss of sensation in both his feet at various places as well as pain. The Veteran complained of loss of sensation on the second and third toe of the left foot and heel of the left foot during the February 2004 VA examination. There were no complaints and/or reported problems with the right foot. Examination revealed tenderness and spasm in the lumbar spine. There was some patchy hypoesthesia on the sole of the left foot and ankle reflexes on the left side were depressed. Motor strength was 5/5. Chronic lumbosacral sprain/strain syndrome which should not have caused the lumbar radicular features was diagnosed. It was noted that the bulging disc and herniated disc would be responsible for the lumbar radiculopathy, and that it was a predominantly sensory symptom. In a June 2004 addendum opinion it was opined that there was a 50 percent probability that the Veteran's disc herniation and lumbar radiculopathy occurred during service. The examiner stated such was not diagnosed in service because of lack of MRI. In a June 2004 lay statement, the Veteran's co-worker expressed that the Veteran talked to him about his foot and back pain. Examination in August 2005 revealed straight leg raise was negative and motor examination was 5/5. Deep tendon reflexes were equal and reactive, Babinski was negative and Dorsalis pedis was palpable. In September 2007, the Veteran's co-workers noted the impact of the Veteran's disability on his employment. They stated that the Veteran experienced pain and had collapsed more than once during work. In July 2008, a history was recorded of low back pain radiating into both legs anteriorly for about 20 years. The Veteran described aching, shooting, tight, numbing, constant and radiating-type pain. Examination revealed positive leg lift and good pulses bilaterally in the lower extremities. The lower extremities were grossly intact and there was a decrease of pinprick over the both extremities anteriorly. Motor and sensory nerve testing were normal in August 2010. Sensation, motor power, reflexes and cranial nerves were normal in September 2010. Examination in October 2010 revealed straight leg raising and contralateral straight leg raising was negative. Muscle strength was 5/5 in the iliopsas, quadriceps, tibialis anterior, EHL and gastrocsoleus. Sensation was intact in all nerve root distributions. The November 2010 VA examination revealed neurological and sensory testing with monofilament testing showed no decrease in sensation of bilateral lower extremities. Straight leg raising was positive and strength was 5/5. When examined in January 2011, the Veteran presented with decreased strength, range of motion and pain. Mild to moderate pain and mild radicular symptoms into the buttocks with straight leg raising test bilaterally was noted. In light of the above, the Board finds that a rating in excess of 10 percent for lumbar radiculopathy of the left lower extremity is not warranted prior to January 29, 2013. The Veteran's symptoms in this regard most nearly approximate mild incomplete paralysis as motor findings were 5/5 and sensory findings were mostly normal indicating only slight abnormality. Consequently, a 10 percent rating is warranted prior to January 29, 2013 for left lower extremity lumbar radiculopathy. In sum, neurological findings, which were generally close to normal on the examinations, indicated symptoms approximating at most mild incomplete paralysis. The Board further finds that a rating higher than 20 percent disabling is not warranted after January 29, 2013. To that end, during the January 2013 VA examination, the Veteran described pain and paresthesias radiating down the left leg of moderate severity. The pain was noted as constant. Examination revealed there was absent ankle reflex on the left side, no atrophy, weakness of tibialis anterior gastrocnemius muscle 4/5, intact light touch and no atrophic changes. Phalen's and Tinel's were negative. Incomplete paralysis of moderate severity in the sciatic nerve, left lower extremity was diagnosed. As noted, the 20 percent evaluation contemplates moderate incomplete paralysis. In order to warrant a higher rating, there must evidence of severe incomplete paralysis, i.e. involvement that is not wholly sensory. Id. Here, there is evidence of slight weakness in the muscle and absent ankle reflex, but otherwise wholly sensory complaints. In addition, there was no muscle atrophy or atrophic changes, and sensory examination was intact to light touch. Other testing was also negative, and the examiner characterized the disability as moderate in severity. The evidence summarized above, therefore, demonstrates that the total disability picture is no more than moderate, and thus a rating of higher than 20 percent is not warranted. The Board has considered whether a higher rating may be available under an alternate Code for both periods of time, but finds that none is appropriate. The Veteran's symptoms and manifestations are fully contemplated by the rating assigned under this Diagnostic Code. The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of pain, tingling, numbness and spasms. The Veteran is competent to report his symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the lay or medical evidence demonstrates that the criteria for the next higher evaluation have been met during the applicable periods of time. The Veteran's credible and competent statements have been considered in the ratings already assigned. Furthermore, the more probative evidence is that prepared by neutral skilled professionals, and such evidence demonstrates that the assigned ratings are warranted and no more. Accordingly, the claims are denied. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and other codes provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). ORDER An initial rating higher than 10 percent disabling for lumbar radiculopathy of the left lower extremity prior to January 29, 2013 is denied. An initial rating higher than 20 percent disabling for lumbar radiculopathy of the left lower extremity since January 29, 2013 is denied. REMAND The Veteran appeals the denial of entitlement to an initial rating higher than 20 percent for lumbosacral strain/sprain with disc herniation at L4-L5. When this issue was last before the Board in June 2012, the Board directed the RO to arrange for a VA examination to determine the nature, extent, and severity of the Veteran's disability. To that end, the VA examiner was asked to describe the frequency and duration of any incapacitating episodes due to the low back disability, requiring bed rest prescribed by a physician and treatment by a physician, over a 12 month period. The Veteran was afforded a VA examination in July 2012. During this examination, the VA examiner found there was evidence of disk syndrome with incapacitating episodes during flare-ups which occur two times every two weeks whereby the Veteran is at bed rest and is incapacitated lasting two days in duration. The VA examiner, however, did not indicate whether the incapacitating episodes requiring bed rest were prescribed. The Court has held that a remand by either the Court or the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA examiner has not complied with the June 2012 remand directives as he did not specify whether the Veteran's incapacitating episodes were prescribed. As such, the examiner is requested to comply with the Board's remand directives, as stated below. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion from the July 2012 VA examiner, if possible. The examiner is asked to state whether the incapacitating episodes he described requiring bed rest were prescribed by a physician and necessitated treatment by a physician. 2. After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 3. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO must readjudicate the issue. All applicable laws and regulations should be considered. If the 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). 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). ______________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs