Citation Nr: 1329317 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-11 709 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah THE ISSUE Entitlement to a disability rating in excess of 20 percent for sensory deficit of the left lower extremity. REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from May 1979 to September 2008. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the RO in Salt Lake City, Utah. In August 2010, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge in Washington, D.C. A transcript of the hearing is associated with the claims file. In a decision dated March 2011, the Board denied a disability rating for sensory deficit of the left lower extremity in excess of 20 percent. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Veterans Court). In an Order dated in May 2012, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Veterans Court vacated the Board's decision as it pertains to this issue, and remanded this issue back to the Board for development consistent with the Joint Motion. The parties to the Joint Motion stipulated that the Board's denial of a disability rating higher than 10 percent for hypoesthesia of the left side of the Veteran's face should not be disturbed, effectively affirming the Board determination. In November 2012, the Board remanded this appeal for additional evidentiary development. Upon completion of the requested development, the RO returned the appeal to the Board for further appellate action. While the RO increased the initial rating from 10 percent to 20 percent during the course of the appeal, inasmuch as higher ratings are still available, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the issue as reflected on the title page. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In the Introduction to the November 2012 remand, the Board noted that, in December 2011, the Veteran filed for an increased rating for degenerative disc disease in his back and temporary convalescence, and in August 2012 he filed a claim for a dependency allowance of a school age child. However, these issues had not been adjudicated by the RO (it appears). Therefore, the Board did not have jurisdiction over them, and they were referred to the RO for appropriate action. It would appear that no action has since been taken on these claims. As these claims are reasonably raised by the record, the Board again refers them to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. For the entire period of this appeal, the Veteran's service-connected sensory deficit of the left lower extremity has been manifested by symptomatology that is productive of no more than moderately severe incomplete paralysis without marked muscular atrophy. CONCLUSION OF LAW The criteria for an initial disability rating of 40 percent for sensory deficit of the left lower extremity are met; the criteria for a rating in excess of 40 percent are not met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.126, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When a claimant is awarded service connection and assigned an initial rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The current appeal arises from a claim of entitlement to service connection received at the RO prior to service separation, on March 7, 2008. In a February 2009 rating decision, the RO granted service connection for a sensory deficit of the left lower extremity and assigned a 10 percent initial disability rating under Diagnostic Code 8520, effective October 1, 2008, the day following service separation. In a January 2010 rating decision, the RO granted an increased 20 percent rating, effective October 1, 2008. Diagnostic Code 8520, and the related Diagnostic Codes 8620 (neuritis) and 8720 (neuralgia) provide for a rating of 80 percent where there is complete paralysis, such that the foot dangles and drops, no active movement is possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost. Ratings are also available for incomplete paralysis. A 60 percent rating is available for incomplete paralysis that is severe, with marked muscular atrophy; a 40 percent rating is available for incomplete paralysis that is moderately severe; a 20 percent rating is provided for incomplete paralysis that is moderate; and a 10 percent rating is appropriate where there is mild incomplete paralysis. See 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620, 8720. The Board remanded this case in November 2012 to address the concerns expressed in the prior examination had not adequately discussed whether the Veteran's symptoms were wholly sensory, and why moderately severe incomplete paralysis was not demonstrated. The Board's remand instructed the RO to obtain a VA examination to address these questions, as well as the manifestations and severity of the Veteran's sensory deficit of the left lower extremity. This was accomplished in April 2013. Three months later, the Veteran was afforded a VA examination to address his service-connected low back disability, which is not a matter currently before the Board. Notably, this examination was performed by the same examiner as conducted the April 2013 examination, and it included a section addressing lower extremity neurological impairment. As will next be addressed, the examiner reported significantly divergent findings in the two reports. In the April 2013 report, when given the choices of mild, moderate and severe, the VA examiner rated the Veteran's pain, paresthesias/dysesthesias, and numbness in the left lower extremity as moderate. By contrast, the same examiner found on a July 2013 spine examination that pain, paresthesias/dysesthesias, and numbness in the lower extremities were severe. In the April 2013 report, when presented with the choices of moderate incomplete paralysis of the sciatic nerve, moderately severe incomplete paralysis, severe paralysis of the sciatic nerve, with marked muscular atrophy, or complete paralysis of the sciatic nerve (where the foot dangles or drops, there is no active movement possible of muscles below the knee, flexion of the knee weakened or lost), the VA examiner found that the disability was best described as moderate incomplete paralysis of the sciatic nerve. In the July 2013 report, given slightly different choices to rate radiculopathy of the left lower extremity (mild, moderate, severe), the same examiner found that the Veteran's radiculopathy of the left lower extremity was severe. In the April 2013 report, the VA examiner found that, based on an EMG showing a chronic neurogenic motor unit abnormalities, this confirms that the Veteran's left lower extremity is sensory in nature. Unfortunately, the examiner did not address whether the disability is "wholly" sensory. There was never any doubt as to the sensory nature of the disability, as the disability was characterized in the grant of service connection as "sensory deficit, left lower extremity." The Board resolves each of the discrepancies in the VA examination reports in the Veteran's favor. The Board finds that the Veteran's sensory deficit of the left lower extremity is not wholly sensory, but involves symptoms such as cramping, fasciculations, and gait impairment, which are non-sensory in nature. In addition, the April 2013 VA examiner found that the left foot moves indiscriminately and the Veteran has less control over its placement when stepping forward. The ankle rolls laterally when walking, evidenced by shoe wear. Moreover, he has incomplete, but almost full dorsiflexion of his left foot. The Board also finds that the symptoms of sensory deficit of the left lower extremity disability are severe, but moderately so, and do not involve marked muscular atrophy. While severe symptoms are demonstrated, the Board finds that the criteria for a 60 percent rating are not met. Those criteria require not only severe symptoms, but also marked muscular atrophy. The use of the connector "with" indicates conjunctive criteria. See Camacho v. Nicholson, 21 Vet. App. 360 (2007); Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (use of the conjunctive in a statutory provision means that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). In Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009), the Veterans Court held that, for an award of a 30 percent rating for hypothyroidism under Diagnostic Code 7903, all three symptoms were not required despite the use of the word "and" in the criteria. The Veterans Court distinguished Camacho v. Nicholson, 21 Vet. App. 360 (2007), noting that Diagnostic Code 7903 did not involve successive rating criteria, but that, a veteran could potentially establish all of the criteria required for either a particular rating without establishing any of the criteria for a lesser disability rating. In this case, the Board finds that, while the rating criteria under Diagnostic Code 8520 do not follow the same pattern as those under Diagnostic Code 7913, they are successive. In other words, a finding that moderate impairment is not shown necessarily implies that any higher level of impairment is also not shown. If a disability is not moderate, it is necessarily not severe. In the alternative, the Board finds that, even if Diagnostic Code 8520 is not successive as a whole, the structure of the ratings for incomplete paralysis are successive. Moreover, there is a distinctly successive aspect to the ratings at the 40 percent and 60 percent levels. The terms "moderately severe" and severe, with marked muscular atrophy, as used at those levels under Diagnostic Code 8520, both require the presence of severe symptoms. The Board emphasizes that the term "moderately severe" does not suggest that symptoms are less than severe. By the plain meaning of the term, it indicates that symptoms are severe, but moderately so. The term "severe, with marked muscular atrophy" adds specific additional symptomatology to the severe level, which, if found, will warrant a higher rating. This construction is successive in the same way that the construction of Diagnostic Code 7913 is successive. To warrant a rating at the 60 percent level, the evidence must demonstrate all of the criteria for the 40 percent level, but must additionally show marked muscular atrophy. Without both elements, it cannot be said that the symptomatology more nearly approximates the criteria for a 60 percent rating than it does the criteria for a 40 percent rating. Here, the evidence demonstrates no muscular atrophy involving the left lower extremity. Indeed, the April 2013 examination report includes the examiner's finding that "[t]here was no muscle atrophy", providing highly probative evidence against such a finding. In July 2013, the VA examiner checked the box "No" after the question, "Does the Veteran have muscle atrophy?" A May 2009 evaluation at Portsmouth Naval Medical reveals muscle tone and bulk were normal throughout. Importantly, the Veteran himself has not directly asserted that he has marked muscular atrophy. As the clinical evidence demonstrates no marked muscle atrophy, and as there is no assertion on the Veteran's part of marked muscle atrophy, the Board finds that a 60 percent rating is not warranted. There is also no assertion of complete paralysis of the sciatic nerve, such that the foot dangles and drops, no active movement is possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost. While the April 2008 VA examination report indicates that there was significant foot drop prior to a December 2003 discectomy, the examiner noted that this symptom improved after the procedure, such that it was described by the examiner as "subtle" and "slight." The April 2013 examiner specifically found that there was not complete paralysis of any lower extremity nerve group. Moreover, active movement of muscles below the knee has been demonstrated throughout the claim. While there is evidence of weakness at the left ankle and great toe, findings for muscle strength at the knee have been generally normal (see the July 2013 VA examination, April 2008 VA examination, evaluations at Portsmouth Naval Medical in March 2009, May 2009, November 2010, December 2010, January 2011, February 2011, July 2011, September 2011, and February 2012). Left knee strength on extension was rated at 4/5 on the VA examination in April 2013; however strength on flexion was not reported. Diagnostic Code 8520 specifies "flexion of the knee." Based on these findings, a rating of 80 percent is also not warranted. Regarding the question of a staged rating, the Board finds it unlikely that the divergent findings in April 2013 and July 2013 represent a sudden worsening of the disability. Notwithstanding the examiner's assessments, the symptoms reported were similar in both reports. The Board also notes that non-sensory symptomatology have been reported throughout the entire period on appeal. The Veteran has consistently reported symptoms such as cramping and fasciculations, which have at least some degree of muscular involvement. These were specifically noted in the April 2008 VA examination. While the presence of non-sensory symptomatology prior to the July 2013 examination does not necessarily imply that severe symptoms were present, on this question, the Board is persuaded by the finding of the April 2013 examiner that, based on the Veteran's history and her review of the medical records, the disability of the left lower extremity has been relatively static. In similar fashion, the April 2008 VA examiner described the radiculopathy as "quite stable." In sum, there is no basis in the record to interpret the divergent findings of the VA examiner to indicate a sudden worsening over a 3-month period since the April 2013 examination. Rather, the Board interprets them as indicative of symptomatology that may fairly and reasonably be interpreted by a competent clinician as either moderate or moderately severe. In other words, the evidence for and against the claim are in relative equipoise. With resolution of reasonable doubt in the Veteran's favor, the Board finds that the criteria for a rating of 40 percent are met; however, the criteria for any higher level are not met and are not more nearly approximated than those for a 40 percent rating. The Board has reviewed the evidence cited in the Joint Motion, and finds that none of cited evidence suggests or implies that there has been marked muscular atrophy or complete paralysis. For these reasons, the Board finds that, although the criteria are met for a 40 percent rating for sensory deficit of the left lower extremity, the weight of the evidence is against a rating in excess of 40 percent. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit- of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2012), which provides procedures for referral or assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd 572 F.3d 1366 (Fed. Cir. 2009). The Board acknowledges that it is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). The Board has attributed all potentially service- connected symptoms to the Veteran's left lower extremity sensory deficit in considering whether the Veteran is entitled to an extraschedular rating. In this case, the Board finds that the schedular rating criteria contemplate the Veteran's service-connected symptomatology. The Veteran has reported symptoms of pain, numbness, tingling, burning, cramping, fasciculations, and giving way of the left lower extremity. On the VA Form 9, the Veteran specified pain, cramping, spasms, and a burning sensation. The Veteran testified at the hearing that his problems consist of a constant burning sensation in the left leg that goes from the crotch all the way down to the ankle, which feels like the left leg is on fire from the inside. The Veteran also described a sensation of a constant charley horse in the left shin, like there is a knot there. Raising the toes causes cramping. The Veteran also described a numbness in the left thigh and left shin, with a constant twitching of the muscles in the left leg. The April 2008 VA examiner noted that the Veteran can walk for 60 minutes. He has a mild antalgic gait and has a steppage-type gait, particularly after prolonged walking or standing activity. In terms of activities of daily living, he has difficulty dressing and getting out of the tub. Occupationally, he has pain with prolonged sitting and standing. He has to get up and change his position. He is required to travel at least once a month and has difficulty with sitting in a plane. Spasms disrupt his sleep and make it more difficult to do his work. He has not run since 2003. He was still playing golf, but much less in frequency. He was not taking any medication. He was able to drive for 2 hours, but noted stiffness and pain, and he had to change positions frequently. The report of VA examination in November 2009 reveals complaint of severe pain that travels to the left leg, exacerbated by physical activity. At the time of pain, he can function without medication. During the flare-ups he experiences limited standing, walking, and lifting. He reported an inability to participate in any sports activities, to stand or walk for prolonged periods of time, or sleep throughout the night. The April 2013 VA examiner found that the peripheral neuropathy does not impact his ability to work, and that the Veteran has chosen to take on an active lifestyle and not succumb to the pain, fire, and burning sensation in his left leg. She found that his quality of life has been impacted as he was an avid golfer and runner, and he is unable to participate in these activities due to the increased pain that results from these activities. In July 2013, the VA examiner found that the Veteran has chosen to maintain a very active life with his 3 children and spouse, despite the pain and the muscle twitching of his left leg. She found that his quality of life has been impacted by the sports he can longer participate in: golf, running, and boating with water sports. The Veteran was managing pain daily with a semi-sedentary work position and no longer flying an aircraft. In this regard, it is important for the Veteran to understand that a 40 percent evolution is a highly significant rating, very generally indicating a 40 percent reduction in industrial adaptability in the body as a whole, and that not all of the evidence supports this finding. However, with consideration of all of the Veteran's complaints and concerns, this evaluation can be found, but no higher. In this regard, the Board has consider separate evaluations for the Veteran's disability based on this problem, however, in doing so, in would reduce the overall evaluation or, at best, leave it equal to the current evaluation. Further, the Board cannot "pyramid" evaluations using the same disability. The Board finds that the type and degree of symptoms reported by the Veteran in this case are fully contemplated by the rating schedule. The symptomatology reported is consistent with moderately severe incomplete paralysis of the sciatic nerve. Higher ratings are provided where the appropriate degree of symptomatology is shown. As discussed in detail above, such symptomatology is neither demonstrated nor alleged. Because the schedular rating criteria are adequate to rate the disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). However, because this appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Veterans Court have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for 'downstream' issues following a service connection grant, such as initial rating and effective date claims). A review of the record reveals that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's written assertions and personal hearing testimony. In addition, the Veteran was afforded several VA examinations to address the manifestations and severity of his sensory deficit of the left lower extremity. In particular, the April 2013 and July 2013 examinations are deemed adequate to evaluate the disability because they were performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The examination reports include findings that are directly pertinent to the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). As discussed above, the inconsistencies regarding the severity of symptomatology demonstrated in these reports have been resolved in the Veteran's favor and do not necessitate another examination. As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's November 2012 remand instructions by sending the Veteran a letter in December 2012 requesting that he identify any medical treatment he has received since separating from service, including any treatment records following the Veteran's November 2011 spinal surgery. In response, the Veteran's representative forwarded the requested records, and they have been associated with the virtual claims file. The RO also obtained a VA examination in April 2013 which addressed the questions specified in the remand, including whether the neurologic disability in the Veteran's left lower extremity should be considered "wholly sensory," whether the Veteran's neurologic disability of the left lower extremity has been relatively static in nature since March 2008, and whether the manifestations of the disability are best described as moderate incomplete paralysis of the sciatic nerve, moderately severe incomplete paralysis, or severe paralysis. Any deficiencies in the examiner's findings are not prejudicial to the Veteran for reasons already addressed. ORDER A disability rating of 40 percent, but not higher, for sensory deficit of the left lower extremity is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs