Citation Nr: 1326356 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-09 880 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a separate compensable rating for left lower extremity radiculopathy. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from July 1997 to December 2004. This matter came to the Board of Veterans' Appeals (Board) from a September 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in June 2011 and November 2012 for further development. A review of the record shows that the RO has complied with all remand instructions by providing VA examinations and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified at a Board videoconference hearing in March 2011. A transcript is of record. The Board notes that the record now includes a private CT of the lumbar spine in January 2013 showed evidence of bulging discs. To the extent that this may constitute a claim for an increased rating for the Veteran's service-connected degenerative disc disease with lumbar strain, this matter is hereby referred to the RO for appropriate action. FINDING OF FACT There is no medical diagnosis of complete or incomplete paralysis, neuritis, or neuralgia associated with the Veteran's complaints of left lower extremity radiculopathy. CONCLUSION OF LAW The criteria for entitlement to a separate compensable rating for left lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, 4.124a, Diagnostic Code 8621 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application, VA 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. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in March 2006 and April 2007. The RO provided the appellant with additional notice in July 2008, subsequent to the initial adjudication. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the July 2008 notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a February 2009 statement of the case, and a February 2013 supplemental statement of the case, following the provision of notice in July 2008. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained private and VA treatment records, reviewed his Virtual VA file, assisted the Veteran in obtaining evidence, afforded the Veteran a VA examination in December 2012 to specifically determine whether a separate compensable rating is warranted, and afforded the Veteran the opportunity to give testimony at a Board videoconference hearing in March 2011. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. However, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. A separate disability rating may be assigned for radiculopathy. It appears to the Board that applicable diagnostic criteria for a separate evaluation for sciatic nerve impairment are contained in 38 C.F.R. § 4.124a, Diagnostic Code 8620. For a compensable rating, this Code requires that there be completion or incomplete paralysis, neuritis, or neuralgia. As noted by the Board in November 2012, the medical evidence includes conflicting reports of left lower extremity radiculopathy symptomatology. September 2009 to January 2011 private treatment records from Teresa Reyes, M.D. show assessments that include left sciatica. Since the July 2011 VA examination did not include such a finding, but private medical records referenced left sciatica, the Board remanded the claim for additional development. The Veteran was afforded a VA examination in December 2012. The sciatic nerve was evaluated as normal. The examiner indicated that there was no complete or incomplete paralysis. Although the examiner acknowledged the Veteran's reported symptoms, neither neuritis nor neuralgia were diagnosed. Special testing was also negative for neuropathy. After interviewing and examining the Veteran, and after reviewing the claims file (as noted in a January 2013 e-mail from the VA examiner), the examiner stated that the Veteran has symptoms of radiculopathy, but physical examination and electrodiagnostics do not verify such a diagnosis. A private CT of the lumbar spine in January 2013 showed evidence of bulging discs, but the report did not refer to any radiculopathy. Service connection has been established for degenerative disc disease with lumbar strain, and a 20 percent rating is in effect for that disability. The only question now before the Board is whether there is associated left lower extremity disability so as to warrant a separate compensable rating. However, the evidence in the present case does not show that the criteria for a separate compensable rating for left lower extremity radiculopathy have been met. Although the Veteran has voiced complaints of left lower extremity pain and numbness, medical examination for the specific purpose of evaluating these symptoms did not result in a finding that there was completion or incomplete paralysis of the sciatic nerve, neuritis, or neuralgia of at least mild severity. Accordingly, a separate compensable rating is not warranted at this time. Should the left lower extremity symptomatology increase in the future, the Veteran may always advance a new claim for a separate compensable rating. The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a separate compensable rating. As the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs