Citation Nr: 1328523 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 10- 06 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent prior to June 1, 2012 and in excess of 30 percent from June 1, 2012 for atrophy of the right upper arm. 2. Entitlement to a compensable initial rating prior to February 29, 2012 and in excess of 10 percent from February 29, 2012 for radiculopathy of the left lower extremity. 3. Entitlement to a compensable initial rating prior to February 29, 2012 and in excess of 10 percent from February 29, 2012 for radiculopathy of the right lower extremity. 4. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right upper extremity. REPRESENTATION Veteran represented by: United Spinal Association ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from July 1977 to November 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2009 and September 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In a January 2009 rating decision, the RO granted service connection for radiculopathy of the right upper extremity and assigned a 10 percent evaluation; granted service connection for radiculopathy of the left upper extremity and assigned a noncompensable rating; granted service connection for radiculopathy of the bilateral lower extremities and assigned a noncompensable rating; and continued a 10 percent rating for atrophy of the right arm. The Veteran appealed the assigned ratings. The issues were remanded in February 2012 for further development of record, to include treatment records and for the conduct of VA examinations to determine the current severity of the disorders. In the September 2012 decision, the RO increased the rating for atrophy of the right upper arm from 10 to 30 percent, effective June 1, 2012; for radiculopathy of the left lower extremity from noncompensable to 10 percent, effective February 29, 2012; and for radiculopathy of the right lower extremity from noncompensable to 10 percent, effective February 29, 2012. Applicable law mandates that when a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). While the Veteran subsequently submitted a notice of disagreement (NOD) to the effective date assigned for the ratings, he had already perfected an appeal to his increased rating claims. A dispute as to the effective date assigned for a grant of a staged rating is essentially a dispute as to the rating assigned prior to the effective date of the staged rating. Accordingly, the Veteran's claim for an earlier effective date is already part and parcel of his increased rating claims. Therefore, the earlier effective date claims are redundant of the increased rating claims, and the Board shall consider the two claims as a single claim. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, albeit, a duplicate copy of the November 2008 VA examination. The issue of entitlement to an increased rating in excess of 10 percent prior to June 1, 2012 and in excess of 30 percent from June 1, 2012 for atrophy of the right upper arm 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 February 29, 2012, the Veteran's service- connected radiculopathy of the right and left lower extremities were manifested by no objective medical evidence of any motor function loss or sensory loss detected at that time. 2. As of February 29, 2012, the Veteran's service-connected radiculopathy of the right and left lower extremities were manifested by objective medical evidence of decreased sensation, numbness, tingling, and weakness, which more nearly approximates mild incomplete paralysis of the posterior tibial nerve. 3. The Veteran's service-connected radiculopathy of the right upper extremity was manifested by objective medical evidence of numbness, tingling, weakness, and decreased sensation, which more nearly approximates moderate incomplete paralysis of the musulocutaneous nerve. CONCLUSIONS OF LAW 1. Prior to February 29, 2012, the criteria for a compensable initial rating for the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Codes (DCs) 8520, 8521, 8525, 8599 (2012). 2. As of February 29, 2012, the criteria for an initial rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Code (DC) 8520, 8521, 8525, 8599 (2012). 3. Prior to February 29, 2012, the criteria for a compensable initial rating for the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Codes (DCs) 8520, 8521, 8525, 8599 (2012). 4. As of February 29, 2012, the criteria for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Code (DC) 8520, 8521, 8525, 8599 (2012). 5. The criteria for an initial 10 percent rating for radiculopathy of the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Codes (DCs) 8515, 8516, 8517, 8599 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) provides that VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim and to assist the Veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159(b), (c) (2012). Proper notice from 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA has complied with its duty to notify the Veteran through a notice letter dated in April 2008 which informed the Veteran of all required elements for service connection, how VA determines disability ratings, and how VA determines effective dates. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's STRs, VA medical records, and private treatment records. Additionally, the Veteran was provided with VA peripheral nerve examinations in November 2008 and February 2012. These examinations are thorough and adequate for the purpose of deciding these claims. In Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012), the Court held that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion" ((citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or- bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Neither the Veteran nor his representative has raised questions about the adequacy of those examinations. Unless the claimant challenges the adequacy of an examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290- 1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). But even when this is challenged, the Board may assume the competency of any VA medical examiner as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The RO has substantially complied with the Board's prior February 2012 remand to obtain treatment records and a VA peripheral nerves examination. The record is sufficient for rating purposes. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999) ((remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with)). 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 claimant in developing the facts pertinent to his claims. Essentially, all evidence available to VA that could substantiate the claims has been obtained. There is no indication in the claims file that there are additional available relevant records that the VA has not yet been obtained that would be relevant to the appeal. Although the Veteran was awarded vocational rehabilitation benefits in May 1992, there is no reasonable possibility that any vocational rehabilitation records would substantiate the Veteran's claims for an increased rating as any available record evidence would be far outweighed by more contemporaneous and probative treatment records and VA examinations during the appeal period. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. In fact, the Veteran in a June 2008 VCAA Notice Response stated that he had no other information or evidence to give VA to substantiate his claims. There is therefore no further notice or assistance to the Veteran required to fulfill VA's duty to assist the Veteran in the development of the claims. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Merits of the Claims The Veteran was initially granted service connection for radiculopathy of the bilateral upper and lower extremities in a January 2009 rating decision. He was assigned a 10 percent disability evaluation for his radiculopathy of the right upper extremity and 0 percent disability evaluations for his radiculopathy of his left upper extremity and bilateral lower extremities, all effective October 18, 2002. In a September 2012 rating decision, the RO increased the rating for the Veteran's radiculopathy of the left and right lower extremity from a noncompensable to 10 percent disabling, both effective February 29, 2012. The Veteran disagrees with the rating assignments and contends that higher ratings are warranted. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R, Part 4. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. See Fenderson v. West, 12 Vet App 119 (1999). Therefore, in matters concerning an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. See Fenderson, 12 Vet. App. 125-26. The Court since has extended this practice even to cases that do not involve initial ratings, so also established ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, when evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. VA treatment records dated from April 2003 to October 2008 reflect complaints of pain of the lower and upper extremities. An April 2003 MRI (magnetic resonance imaging) noted diffuse disc/ridge at C5-6. There was evidence of mild canal and bilateral foraminal stenosis. The disc/ridge contacted and effaced the ventral aspect of the cervical cord. However, there was no definite evidence of abnormal signal on this testing. A July 2003 VA treatment record reflects that the Veteran complained of weakness pain, and numbness in the extensor part of the forearm. He also complained of persistent right lower back pain radiating down through the buttocks into the thigh extending into the anterior leg with intermittent numbness and restricted movement from pain. Upon physical examination, the Veteran had decreased range of motion of the neck, atrophy of the right bicep muscle, weakness of the right bicep, and bracheoradialis and extensor carpi radialis with possible ulnaris sensory loss in extensor forearm in patch distribution on the right with decreased bicep and brachiuoradialis reflex on right. However, the remainder of the examination was normal. With regard to the lower extremities, the sensory examination was normal. However, the motor examination was limited by reported "give-way" weakness due to pain. He was assessed with right C-6 radiculopathy and right lower back/lower extremity pain. An April 2004 VA treatment record noted that pain was well- controlled with daily Neurontin. A January 2005 VA treatment record noted isolated left thigh pain possibly related to current neurological diagnosis, chronic pain syndrome, right C-6 radiculopathy, and lower back pain. A February 2005 VA treatment record showed no motor weakness in the femoral distribution and reflexes 2+ b/1 for the knees and ankles. The remainder of the examination was normal and unchanged. He complained of numbness in the left anterolateral thigh. An October 2008 VA examination reflects complaints of radiating pain and discomfort in both arms and legs. However, the Veteran reported to the examiner that there were no incapacitating episodes, flare-ups, problems with repetitive use, or interference with his employment or daily activities. He did not report bowel or bladder changes or weakness. Upon physical examination, the deep tendon reflexes were even, but brisk at 3/4 in the lower extremities and 2/4 in the upper extremities. Muscle tone was normal with a negative clonus. His motor strength was 5/5 distal and proximal in both upper extremities. Sensation was grossly intact to light touch. There was no axial tenderness, deformities, pain to palpation, or muscle spasms. He rotated to his right 60 degrees and to the left 50 degrees, side bends were right 20 degrees, side bends left 25 degrees, extends 25 degrees, and flexes with complaints of pain. There was no additional loss of joint function due to pain, fatigue, or lack of coordination after repetitive motion of the cervical spine. Although the testing was not conducted with a view towards ascertaining his right upper extremity disorder, the Veteran was diagnosed with prior compression fracture of the C-5 myelomalacia myelopathy. During a November 2008 VA peripheral nerves examination, the Veteran complained of pain that radiated down both arms and legs. He indicated the sensation was worse in his right leg. He also reported some numbness in his right arm and leg. As to his right upper extremity, he denied incapacitating episodes, flare-ups, interference with his employment or daily activities, and any bowel or bladder changes or weakness. He reported that he had constant neck pain, and muscle spasms, symptoms of radiculopathy, and cervical myelopathy. His alleged that his pain ranged from 7 to 9 out of 10 (10 being the worst). Upon neurological examination, no gross paralysis and no gross atrophy were noted. The Veteran was alert, oriented, and cooperative. Apart from his neck movements which were restricted and are not presently at issue, there were no cervical paravertebral muscle spasms noted. Motor strength on the right upper extremity of deltoid and biceps was 4/5 and 5/5 on the left upper extremity. There was no atrophy of the lower extremities. Muscle tone and volume were normal on the lower extremities. With regard to reflexes, the right brachioradialis 1, left brachioradialis 2 to 2.5. Knee jerks on the right were 2.5 and left were 2+. Ankle jerks were 2+. Significantly as it bears upon his lower extremity function, it was noted that the Veteran's gait was normal and there was no sensory deficit detected. Sensation to pinprick was diminished subjectively on the right arm at the C5-C6 distribution of the right deltoid and right biceps area. There was no sensory loss in the hand. The Veteran was diagnosed with status post- spinal cord condition at the level of C-5; right cervical radiculopathy C5-C6; and mild cervical myelopathy. There was no gross paralysis or atrophy. The Veteran had a mild right upper extremity weakness. Although the Veteran reported that the pain interfered with his physical and sedentary job functions, he maintained employment. The Veteran had cervical radiculopathy moderately severe on the right, and the MRI showed cervical contusion at C5 and myelomalacia. Although the Veteran reported symptoms of mild, intermittent weakness and numbness of the lower extremities, there was noted no objective evidence of any motor function loss or sensory loss detected at that time. A November 2008 MRI noted moderate compression deformity of C-5 with a focus of myelomalacia in the cord at this level. There were multi-level spondylitic changes. A February 2012 VA examination of the Central Nervous System Diseases noted that the Veteran was diagnosed with a central nervous condition and spinal cord injuries. The Veteran's symptoms consisted of arm and leg pain, numbness, and weakness. He had a twitching sensation in both arms and reported that he felt pain to touch. He denied any urinary/bowel incontinence, but had urgency. His central nervous system condition did not require continuous medication for control. The Veteran was right hand dominant. He had muscle weakness in the upper and lower extremities. He did not have a voiding dysfunction or a history of recurrent symptomatic urinary tract infections or erectile dysfunction. As previously, his gait was normal. His strength was 5/5 for left and right elbow flexion, wrist flexion, wrist extension, grip, pinch, knee extension, ankle plantar flexion, and ankle dorsiflexion, but 4/5 for right elbow extension. His right and left biceps, triceps, barchioradialis, knee, and ankle were 2+. He had right upper extremity muscle atrophy with moderate right upper extremity muscle weakness and no left upper extremity muscle weakness and no right lower extremity muscle weakness or left lower extremity muscle weakness. The examiner was not able to differentiate what portion of the symptomatology or neurological effects above were caused by each diagnosis. The Veteran did not use assistive devices. His function was not so diminished that amputation with prosthesis would equally serve the Veteran. It was noted that his central nervous system disability impacted his ability to work in that he could not use his right arm for prolonged periods of time for heavy lifting. In a February 2012 VA examination the Veteran was noted to have muscle atrophy of the right bicep. However, the examiner noted that he had 5/5 strength for right and left elbow flexion, elbow extension, wrist flexion, wrist extension, grip, pinch, knee extension, ankle plantar flexion, and ankle dorsiflexion. Right and left biceps, triceps, knee, and ankles were 2+, but brachioradialis was 3+. He had normal sensation testing for light touch on the right and left shoulder area, inner/outer forearm, hand/fingers, upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. His gait was again noted to be normal. His right radial, median, musculocutaneous, circumflex, long thoracic, and ulnar nerves were normal. His sciatic nerve, external popliteal, anterior tibial, internal popliteal and posterior tibial nerves were normal. The examiner noted that the Veteran did not use any assistive devices as normal mode of locomotion. There was no functional impairment of an extremity such that no effective function remained other that which would be equally well- served by the amputation with prosthesis due to his peripheral nerve conditions. An EMG was not performed. The radiculopathy did not impact his ability to work. The VA examiner concluded that based on review of the electronic records and claims file as well as the Veteran's history and examination, his symptoms were "moderate" in severity. He also stated that the right arm atrophy prohibited tasks that involved heavy lifting and physically challenging tasks. The Veteran has reported loss of feeling, constant tingling, numbness, and paresthesis of both hands, arms, legs, and feet. He noted "cramps and vibrations of the nerves" and a radiating, sharp, stabbing pain in his legs and arms. He also reported cramping in his toes and an inability to move his toes for several minutes. The Veteran related that he had no feeling in his limbs at night and he ambulated with a sharp pain that radiated up the insoles of his feet through the inside of his legs. He noted the sharp pain subsided and his legs became numb when he sat for a long period of time. He indicated that his arms were "weak and heavy" and he reported that any light touch caused a pain sensation resulting in arm jerks. He used a transcutaneous electronic stimulation (TENS) machine on his legs and arms and an inversion table to alleviate his back pain and headaches. He stated that he considered the appeal satisfied if he was granted a 20 percent for each limb. (See January 2010 Notice of Disagreement). Radiculopathy of the Right and Left Lower Extremities Prior to February 29, 2012, the Veteran has been assigned a noncompensable rating for his service-connected radiculopathy of the right and left lower extremities pursuant to 38 C.F.R. § 4.12a, DCs 8599-8525 (2012). When a particular disability is not listed among the diagnostic codes, a code ending in "99" is used; the first two numbers are selected from the portion of the schedule most approximating a Veteran's symptoms. 38 C.F.R. § 4.27. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. In this case, DC 8599 refers to peripheral neuropathy and/or radiculopathy of the lower extremities, while the more specific DC 8525 refers to paralysis of the posterior tibial nerve. 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, tropic 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 percent 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. Under DC 8525, complete paralysis of all muscles of the sole of foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired is rated 30 percent disabling. Incomplete paralysis that is "severe," "moderate," and "mild" is rated as 20, 10, and 10 percent disabling, respectively. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate in 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. The criteria for a compensable rating for the Veteran's bilateral lower extremities, prior to February 29, 2012, have not been met or approximated. A July 2003 VA treatment record noted normal sensory examination of the lower extremities, albeit, the motor examination was limited by "give-way" weakness due to pain. The Veteran was assessed with right C-6 radiculopathy and right lower back/lower extremity pain. However, a February 2005 VA treatment record showed no motor weakness in the femoral distribution and the reflexes were 2+ b/1 for the knees and ankles. The remainder of the examination was normal and unchanged. The November 2008 VA examiner noted that there was no atrophy of the lower extremities. Muscle tone and volume were normal. With regard to reflexes, the knee jerks on the right were 2.5 and left was 2+ and ankle jerks were 2+. There was no Babinski sign or ankle clonus. His gait was normal and there was no sensory deficit detected. The examiner also stated that the symptoms of mild, intermittent weakness, and numbness of the lower extremities did not include any objective evidence of any motor function loss or sensory loss detected at that time. A compensable rating under any diagnostic codes requires mild incomplete paralysis of the posterior tibial nerve, sciatic nerve, common peroneal nerve, and moderate incomplete paralysis of the superficial peroneal nerve. See DC 8520-8525. There is no medical evidence prior to February 29, 2012 that would warrant higher ratings or demonstrate any incomplete paralysis of the posterior tibial nerve, sciatic, common peroneal, and/or superficial peroneal nerves. A compensable rating for the Veteran's service- connected radiculopathy of the right and left lower extremities is therefore not warranted. Further, a compensable rating under DC 5284 (for rating foot injuries) is not warranted. Diagnostic Code 5284 provides for a 10 percent rating for a moderate foot injury. The Code is not applicable because it is intended to evaluate foot injuries not otherwise enumerated under the rating schedule. The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief that his service-connected radiculopathy of the right and left lower extremities have worsened. However, the objective clinical findings do not support his assertions for the reasons stated above. As the preponderance of the evidence is against the Veteran's claims for increased ratings for his service-connected radiculopathy of the right and left lower extremities, prior to February 29, 2012, the benefit- of-the-doubt doctrine is not for application, and increased ratings must be denied. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55. As of February 29, 2012, the Veteran has been assigned a 10 percent disabling evaluation for his service-connected radiculopathy of the right and lower extremities pursuant to 38 C.F.R. § 4.12a, DC 8525. Increased ratings in excess of 10 percent are not warranted for the Veteran's service-connected radiculopathy of the right and lower extremities as of February 29, 2012. The neurological findings on clinical testing are not shown to more closely approximate a severe incomplete paralysis of the posterior tibial nerve or complete paralysis of the posterior tibial nerve. Based on results from the February 2012 VA peripheral nerves examinations, there has been no evidence of atrophy or loss of tone in the muscles, loss of muscle strength, significantly decreased motor function or sensory loss, or complete paralysis. He had 5/5 strength for the knee extension, ankle plantar flexion, and ankle dorsiflexion. Right and left biceps, triceps, knee, and ankles were 2+. He had normal sensation testing for light touch on the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. His gait was normal. His sciatic nerve, external popliteal, anterior tibial, internal popliteal and posterior tibial nerves were normal. The February 2012 VA examiner described the Veteran's symptoms as moderate. As such, increased ratings in excess of 10 percent disabling are not warranted for the Veteran's service-connected radiculopathy of the right and left lower extremities, as of February 29, 2012, under DCs 8520, 8521, 8522, or 8525. The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief that his service-connected radiculopathy of the right and left lower extremities, as of February 29, 2012, have worsened. However, the objective clinical findings do not support his assertions for the reasons stated above. As the preponderance of the evidence is against the Veteran's claims for increased ratings in excess of 10 percent for his service-connected radiculopathy of the right and left lower extremities, as of February 29, 2012, the benefit-of-the- doubt doctrine is not for application, and increased ratings must be denied. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55. B. Radiculopathy of the Right Upper Extremity The Veteran has been assigned a 10 percent disability rating for his service-connected radiculopathy of the upper right extremity pursuant to 38 C.F.R. § 4.12a DCs 8599-8517, effective October 18, 2002. As mentioned previously, DC 8599 refers to peripheral neuropathy of the upper extremities, while the more specific DC 8517 refers to paralysis of the musculocutaneous nerve. Under DC 8517, moderate incomplete paralysis of the musculocutaneous nerve warrants a 10 percent evaluation for both the major and minor extremities. Severe incomplete paralysis of the musculocutaneous nerve warrants a 20 percent evaluation for both the major and minor extremities. DCs 8613, 8713, 8616, 8715, 8616, 8717, 8617, and 8717 address the criteria for evaluating neuritis and neuralgia of the median, ulnar, and musculocutaneous nerves or the lower radicular group. Peripheral neuralgia characterized usually by a dull and intermittent pain in the typical nerve distribution is given a maximum rating of moderate incomplete paralysis. 38 C.F.R. § 4.124. Neuralgia is defined as pain extending along the course of a nerve. Dorland's Illustrated Medical Dictionary 1281 (31st ed. 2007). Peripheral neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is given a maximum rating of severe incomplete paralysis. 38 C.F.R. § 4.123. Neuritis is defined as inflammation of a nerve, causing pain and tenderness. Dorland's Illustrated Medical Dictionary 1282 (31st ed. 2007). The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates 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. 38 C.F.R. § 4.124a, DC 8517 (2012). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. It should also be noted that nonspecific words such as "moderate" or "severe" are not defined in these diagnostic codes. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." See 38 C.F.R. § 4.6. A rating in excess of 10 percent for the Veteran's right upper extremity has not been met. The evidence indicates that the Veteran's symptomatology is most appropriately described, at best, as moderate incomplete musculocutaneous nerves. During the appeal period, the Veteran has complained of pain, weakness, twitching sensation, and numbness of the right arm. However, in July 2003, the Veteran had a normal sensory examination of the right arm except for weakness in the right bicep, bracheoradialis, extensor carpal radialis, and possible ulnari sensory loss in extensor forearm. Subsequent examinations reflected normal strength in the deltoids, triceps, wrist extensors, and grip. (See November 2008 VA examination and February 2012 examination report). He exhibited power in the right upper extremity that was intact. Sensory testing revealed intact light touch and pinprick sensation in the right upper extremity except for diminished subjectively on the deltoid and right bicep area. Repetitive motion did not demonstrate any obvious weakness or pain. The February 2012 examiner described the Veteran's disability as moderate. A higher rating under DCs 8515 and 8516 is not for application as there was no sensory loss of the right hand and/or impairment of the median and ulnar nerves. Although a July 2003 VA treatment record noted "possible ulnaris sensory loss in extensor forearm," subsequent examinations have confirmed no sensory loss in the right hand or median and ulnar nerve impairment, as indicated in the November 2008 and February 2012 peripheral nerves examination. Specifically, the February 2012 VA examiner noted normal sensation testing for light touch on the right inner/outer forearm and hand/fingers and concluded that the Veteran's symptoms were moderate in severity. The Veteran's right radial, median, musculocutaneous, circumflex, long thoracic and ulnar nerves were normal. The neurological findings on clinical testing are not shown to more closely approximate a severe incomplete paralysis or complete paralysis. The musculocutaneous nerve was described as normal in February 2012 nor was there loss of flexion of elbow and suppination of forearm. An increased rating in excess of 10 percent is not warranted for the Veteran's service-connected radiculopathy of the right upper extremity under DC 8517. Further, the Veteran's statements of pain, weakness, numbness, and tingling are encompassed within the criteria for incomplete paralysis. The Veteran is competent to report his symptoms, and the Board does not doubt the sincerity of the Veteran's belief that his service-connected radiculopathy has worsened. However, the objective clinical findings do not support his assertions for the reasons stated above. As noted the Veteran has been separately rated as 30 percent disabling under DC 5303 for atrophy of the right upper arm. His claim for an increased evaluation is remanded below for consideration of a higher rating. The evaluation of the same manifestation under different diagnoses, a practice known as "pyramiding," is to be avoided. See 38 C.F.R. § 4.14. In the Board's judgment, the symptoms of the Veteran's service- connected radiculopathy of the right upper extremity has been sufficiently described such that they can be dissociated from his muscle atrophy of the right arm. See generally Mittleider v. West, 11 Vet. App. 181 (1998). For example, the February 2012 DBQ examiner stated that the right arm atrophy prohibited tasks that involved heavy lifting and physically challenging tasks. Overall, the evidence is insufficient to show that the Veteran has severe incomplete paralysis or complete paralysis of the right upper arm. The criteria are not met for an initial rating higher than 10 percent for radiculopathy of the right upper extremity. And this has been the case since the filing of this claim, so the Board cannot "stage" the rating under Fenderson. As the preponderance of the evidence is against the Veteran's claims for an increased rating in excess of 10 percent for his service-connected radiculopathy of the right upper extremity, the benefit-of-the-doubt doctrine is not for application, and the increased rating must be denied. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 55. Extraschedular Consideration The Board has also considered whether referral for an extraschedular rating is appropriate. Ratings are generally based on average impairment, and that the rating schedule represents, as far as is practicable, the average impairment of earning capacity. See 38 C.F.R. § 3.321(a), (b) (2012). However, to afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.3211 (b) (2012). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Id. at 115-16. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, and is therefore found to be inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as 'governing norms. Id. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant 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 extraschedular rating. Id. As noted above, the Veteran's radiculopathy of the upper and lower extremities primarily involves minimal numbness, weakness, mild incomplete paralysis, and pain. Such impairment is specifically contemplated by the rating criteria. See 38 C.F.R. § 4.124a, DCs 8515, 8516, 8517, 8520, 8521, 8522, 8255. Although the Veteran reported that his inability to lift heavy items impairs his employment, such symptomatology is attributed to the service-connected muscle atrophy of the right arm. Regardless, the Veteran is able to maintain meaningful employment. Accordingly, the Board finds that the Veteran does not present such an exceptional or unusual disability picture that the available schedular evaluations for his radiculopathy of the bilateral upper and lower extremities are inadequate. Therefore, the Board concludes that referral for consideration of an extraschedular rating is not warranted in this case. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). ORDER Entitlement to a compensable initial rating prior to February 29, 2012 and in excess of 10 percent from February 29, 2012 for radiculopathy of the left lower extremity is denied. Entitlement to a compensable initial rating prior to February 29, 2012 and in excess of 10 percent from February 29, 2012 for radiculopathy of the right lower extremity is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right upper extremity is denied. REMAND A July 2012 VA examiner for the muscles (separate from the February 2012 examiner for the peripheral nerves) stated that the Veteran was scheduled for an EMG, which was needed to establish a diagnosis and provide a medical opinion and that the Veteran did not report for the appointment. It is unclear whether the Veteran received notice of the scheduled EMG. Given that the Veteran has consistently kept all other VA appointments, the Veteran should be afforded one more opportunity to have an EMG. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete treatment records from the Vista East Orange VA treatment facility, dated since November 2008. 2. Then, the RO/AMC must arrange for a VA muscle examination with an EMG (unless the VA examiner states in writing that an EMG is unnecessary). The following considerations will govern the examination: The claims folder and a copy of this remand will be provided to the examiner for review in conjunction with the examination. The examiner must acknowledge receipt and review of these materials in any report generated by the examination. The examiner will be advised that the purpose of the examination is to ascertain the severity of the service- connected atrophy of the right upper arm. The Veteran is already in receipt of service connection for the disorder in question - any discussion of the source or etiology of the disorder is only relevant to the extent that it may provide information as to the severity of the disorder. The examiner must respond to each of the following inquiries for the service-connected right upper extremity atrophy: Ascertain from the Veteran his subjective report of the functional impairment resulting from service- connected atrophy of the right upper arm. THEN DETERMINE BY ANY CLINICAL OR OTHER TESTING WHETHER THE SUBJECTIVE REPORTS ARE SUBSTANTIATED EITHER BY MEDICAL, CLINICAL OR OTHER EVIDENCE. IS THERE FUNCTIONAL IMPAIRMENT DUE TO THE VETERAN'S RIGHT UPPER ARM ATROPHY? IF SO, IS THE FUNCTIONAL IMPAIRMENT SEVERE, MODERATELY SEVERE, MODERATE, OR SLIGHT? In addition to any other evidence now of record or which will be obtained as a result of this remand, the examiner's attention is called to the following matters of record: The November 2008 VA peripheral nerves examination report; and a January 2010 Notice of Disagreement, in which the Veteran reports subjective complaints with respect to his upper extremities. 3. Thereafter, the RO/AMC will review the claims file and ensure that the development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. The RO/AMC must then readjudicate the claim for an increased rating for his service-connected right arm atrophy disability, including consideration of all of the evidence of record. If the benefits sought on appeal remain denied, the Veteran and his representative will be furnished a supplemental statement of the case with reasons and bases for the decision. The Veteran and his representative will be then given an appropriate opportunity to respond. The Veteran 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs