Citation Nr: 1333607 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-05 021 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming THE ISSUE Entitlement to a separate compensable rating for neurological manifestations of lumbosacral disc disease other than right leg radiculopathy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1986 to March 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Cheyenne, Wyoming VA Regional Office, which granted service connection for lumbosacral disc disease, rated 20 percent, effective April 1, 2007. In April 2008, a Travel Board hearing was held before a Veterans Law Judge who is no longer with the Board; a transcript of the hearing is associated with the record. In May 2009, the matter was remanded for evidentiary development. Thereafter, the Veterans Law Judge who conducted the April 2008 hearing retired; in December 2011 the Veteran was offered the opportunity for a hearing before another Veterans Law Judge who would decide his case. In January 2012 he responded that he did not want another hearing, and asked that the matter be decided based on the evidence of record. The Board's May 2009 remand requested development to ascertain whether the Veteran had neurological impairment associated with his low back disability. Based on a subsequent VA examination, a June 2010 rating decision awarded service connection for right lower extremity radiculopathy, rated 10 percent from April 1, 2007, as a separately ratable manifestation of the low back disability. The Veteran has not disagreed with that rating decision, and the matter of the rating for right lower extremity radiculopathy is not before the Board. FINDING OF FACT It is reasonably shown that the Veteran has left lower extremity radiculopathy, consistent with mild (but not greater) incomplete paralysis of the sciatic nerve, as a neurological manifestation of his lumbosacral disc disease; the preponderance of the evidence is against a finding that he has any compensable neurological manifestation of the disc disease other than radiculopathy of both lower extremities. CONCLUSION OF LAW A separate 10 percent rating is warranted for left lower extremity radiculopathy as a neurological manifestation of lumbosacral disc disease; separate ratings for neurological manifestations of the disability other than radiculopathy of both lower are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.310, 4.1, 4.3, 4.6, 4.7, 4.10, 4.71a, 4.124a, Diagnostic Code (Code) 8520 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. In a claim for increase, the VCAA requirement is generic notice, that is, notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as generic notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was advised of VA's duties to notify and assist in the development of his claim. A December 2006 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A January 2013 supplemental statement of the case (SSOC) readjudicated the matter. He has received the general-type notice described in Vazquez-Flores, and has had ample opportunity to respond/supplement the record. It is not alleged that notice in this case was less than adequate. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). Pertinent postservice treatment records are associated with the Veteran's claims file. The RO arranged for examinations of the Veteran to determine whether he has separately ratable disabilities as neurological manifestations of his service-connected lumbar spine disability in June 2009, November 2012, and December 2012. The Board finds these examinations (cumulatively) to be adequate for rating purposes. The examiners reviewed the record, conducted thorough examinations of the Veteran, and explained the rationale for the opinions given, with citation to factual data. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent available evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), associated objective neurological abnormalities (including, but not limited to, bowel or bladder impairment) are to be separately rated under the appropriate Diagnostic Code. 38 C.F.R. § 4.71a, Note 1 following the General Formula. A June 2010 rating decision assigned the Veteran a separate 10 percent rating for neurological manifestations of the right lower extremity. The Veteran has not expressed disagreement with that rating, and that matter is not before the Board. The Board noted on March 2012 remand that the record raised a question of whether the Veteran also has further neurological manifestations of his postoperative lumbosacral disc disease that would warrant additional separate compensable ratings. Dysfunctions of the genitourinary system are rated under 38 C.F.R. § 4.115a, which includes rating for renal dysfunction, voiding dysfunction, urinary frequency, obstructed voiding, and urinary tract infection. [As there is no evidence of renal dysfunction or urinary tract infection, such will not be addressed below.] Under 38 C.F.R. § 4.115a, voiding dysfunction requiring the wearing of absorbent materials which must be changed less than 2 times per day warrants a 20 percent rating. A 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. A 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Urinary frequency with daytime voiding interval between two and three hours, or awakening to void two times per night, warrants a 10 percent rating. A 20 percent rating is warranted for urinary frequency with daytime voiding interval between one and two hours, or awakening to void three to four times per night. A 40 percent rating is warranted for urinary frequency with daytime voiding interval less than one hour, or awakening to void five or more times per night. Regarding obstructed voiding, obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year warrants a 0 percent rating. A 10 percent rating is warranted for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of: post void residuals greater than 150 cc., uroflowmetry with markedly diminished peak flow rate (less than 10 cc/second), recurrent urinary tract infections secondary to obstruction, and/or stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. Neurological impairment of the lower extremities due to a spine disability is rated under 38 C.F.R. § 4.124a, Code 8520, as analogous to sciatic nerve damage. Incomplete paralysis of the sciatic nerve that is mild warrants a 10 percent rating. A 20 percent rating is warranted for moderate incomplete paralysis of the nerve. A 40 percent rating is warranted for moderately severe incomplete paralysis of the nerve. A 60 percent rating is warranted for severe incomplete paralysis of the nerve, with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve; the foot dangles and drops, and no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. On December 2006 pre-separation VA examination, the examiner noted a history of L5-S1 fusion and discectomy in August 2001. The Veteran reported a constant moderate dull ache at the lumbar area with right leg pain and numbness which was exacerbated on bending the right leg. He reported numbness from the posterior back and lumbar area laterally down into the right foot and toes. He denied any bowel or bladder changes. On neurologic examination, deep tendon reflexes were normal, motor and sensory were intact, and straight leg raises were negative. Lumbar spine X-rays showed status post fusion procedure at L5-S1 with decompression, with no acute abnormality seen in the levels above. The diagnosis was chronic low back pain status post L5-S1 discectomy and fusion. In a July 2007 notice of disagreement with the July 2007 rating decision on appeal, the Veteran's representative stated that the Veteran believed the rating failed to account for the neurological pain down his right leg which required treatment a couple of times per year and severely restricted his physical activities. No complaints regarding the left leg or other neurological manifestations were reported. In his December 2007 substantive appeal, the Veteran reported constant tingling in the right leg and right side of his right foot, in addition to his lower back pain. He did not report any symptoms involving the left leg, or any other neurological manifestations such as bladder or bowel impairment. On April 2008 VA treatment, the Veteran reported intermittent sciatic pain. The assessments included sciatica. At the April 2008 Travel Board hearing, the Veteran testified that he has experienced what felt like muscle spasms and electricity running down his back and to the front of his leg. He testified that he would wake up in the middle of the night with his leg convulsing. On March 2009 VA treatment, the Veteran reported flare-ups of pain down the right leg and pain in the right foot, as well as right sided low back pain. On May 2009 VA treatment, the Veteran continued to have sciatic nerve problems and numbness to the lateral right foot. On June 2009 VA examination, the examiner noted that the Veteran's posture and gait were normal, and that he used no assistive devices. The Veteran reported there had been no change in his low back since the previous [2006] VA examination (he stated that his back did not flare-up as much). He reported "jolts of electricity" in the right leg, which were rare during the summer but occurred nearly every day in the winter and lasted for a few seconds at a time. He reported numbness on the lateral side of the right foot, mostly during the winter only. He reported that his wife complained of his right leg twitching during the night when he was cold. He denied any urinary incontinence or urgency, though he questioned whether he had retention; he reported that he had difficulty starting urinary flow when his back hurt, citing a recent incident after he had been lying down on concrete to tighten a bolt on his motorcycle. He estimated having difficulty starting urinary flow approximately once per week, though he had never required catheterization; he generally urinated twice per hour during the day and once per night. He denied any bowel problems or erectile dysfunction. On neurologic examination, vibratory sensation was positive at the first through fifth metacarpal joints and the first through fifth metatarsal joints bilaterally. The Veteran was accurate for sharp/dull discrimination at the bilateral upper and lower extremities, though he stated that dull was sensed only as pressure in the lower extremities. Deep tendon reflexes were 2/4 at the brachial, patellar, and Achilles tendons and equal bilaterally. Upper and lower extremity strength and grip strength were each 5/5. Straight leg lift testing was negative; however, within seconds the Veteran complained of a back spasm into the left buttock and a "jolt of electricity" into the left upper leg. He stated that this was the first time he had had a spasm/jolt on the left side. Within a few more seconds, he complained of tingling in the right little toe and complained of numbness "like a fat lip after the dentist anesthetizes" within a few minutes. The Veteran reported that continued pressure would cause a "jolt of electricity" into the right leg. No additional neurologic abnormalities were found. The diagnoses were stable L5-S1 posterior lumbar interbody fusion, stable mild degenerative disk disease throughout the remainder of the lumbar spine, and radiculopathy of the right leg. On November 2010 VA treatment, the Veteran reported that his sciatic pain was intermittent and exacerbated by the weather, and he was experiencing a flare-up at that time. On September 2012 VA treatment, the Veteran reported sensory changes of his left middle toe. He denied any loss of bowel or bladder function. On motor testing, strength was diminished in the left lower extremity. On sensory testing, touch and pinprick were decreased along the L4-L5 and left lower extremity. The assessments included lumbar radiculopathy. On November 2012 VA neurosurgical examination, the Veteran reported that, subsequent to his August 2001 lumbar spine surgery, he had had pain in both his right and left lower extremities with what he described as jolts of electricity down both of his legs. He stated that although he had postoperative pain in the right lower extremity, he had had increasing numbness in the dorsum of the left foot between the third and fourth toes of the foot. He stated that he would periodically have an electric shock-like feeling radiating into his left lower extremity that could on occasion radiate into the right lower extremity as well. He reported that, subsequent to the surgery, he felt as though he could not fully empty his bladder and there was urinary hesitancy. On musculoskeletal examination, there were no deformities to palpation of the axial skeleton. On neurologic examination, the cranial nerves were tested and found to be intact. On motor strength testing, the Veteran reported he could not dorsiflex his foot or his left great toe; however, when standing, he was asked to walk on his toes and on his heels, and he could obviously dorsiflex the dorsum of the left foot as well as contract the left extensor hallucis longus musculature. He reported decreased light touch sensation over the dorsum of the left foot. Sensation testing was intact to light touch and pinprick and symmetric bilaterally. Phalen's test and Tinel's test were negative bilaterally, Spurling's sign was negative bilaterally, he walked with a normal gait and station, and his reflexes were 2+ in his knees and 1+ in his ankles. Straight leg raising was positive on the left. The examiner's impression was that the Veteran has both left and right lower extremity radiculopathy secondary to his previous spinal pathology, including his previous surgery. The examiner recommended bladder testing with cystometrogram as well as EMG/nerve conduction studies of the lower extremities to more objectively find evidence to establish the presence of a left lower extremity radiculopathy. On December 2012 Nerve Conduction (NCV)/Electromyogram (EMG) studies, the Veteran reported left lower extremity numbness especially in the lateral toes; he reported "electricity" shooting down both legs. The NCV findings showed prolonged distal peak latency of the left sural antisensory nerve and prolonged latency of the left tibial H-reflex; all other findings were within normal limits. The EMG findings showed increased insertional activity and moderate increased spontaneous activity of the left gluteus medius muscle; all remaining muscles tested showed no evidence of electrical instability. The neurologist's impression was that the study was abnormal for prolongation of the H reflex on the left and evidence of acute denervation in the gluteus medius; the neurologist opined that this is most likely due to a left L5 radiculopathy, however an isolated problem with the superior gluteal nerve could not be totally ruled out. December 2012 MRI results for the lumbar spine showed normal alignment, normal marrow signal, no lumbar vertebral body compression deformities, and postoperative changes at L5-S1 compatible with posterior decompression with posterior and interbody fusion. On December 2012 VA urology examination, the Veteran reported that he did not get up at night to urinate; he denied hesitancy, intermittency, dribbling, urgency, or urgency incontinence. He reported that he voided with a good flow. He stated that only when his back flares up, it causes him pain and he would feel like he is not emptying well; he reported having these episodes about three to four times per week. He had not had any urinary tract infections, stone disease, or gross hematuria, and he had no prior urological operations or procedures. On review of the neurologic system, the Veteran denied any weakness or loss of bowel or bladder control, but he admitted to [unspecified] numbness and tingling. On physical examination, a urine test was negative. The Veteran was bladder scanned for post void due to his reported symptoms of retention; he initially had 139 CCs but he voided again and was able to empty his bladder completely. The urologist opined that the Veteran did not appear to have significant problems at that time but stated that he would order additional studies as recommended by the neurosurgeon. On later December 2012 urology follow-up consult, urodynamics studies showed no uninhibited contractions and no evidence of an atonic neurogenic bladder; when asked to void, the Veteran had a good detrusor contraction. His flow was low but he was able to empty his bladder satisfactorily. The physician determined that there was minimal symptomatology and opined that the pattern is that of obstruction and the Veteran probably has early BPH [benign prostatic hypertrophy]. In a December 2012 VA summary opinion based on the neurosurgical, urologic, and neurological testing cited, the reviewing nurse practitioner noted the November 2012 neurosurgical opinion that the Veteran has both left and right lower extremity radiculopathy secondary to his previous spinal pathology including the previous surgery; and the NCV/EMG test results and neurologic opinion that the findings were most likely due to a left L5 radiculopathy. The reviewing examiner noted that the consulting neurologist reported to her during a conversation about the results that the Veteran's observed behaviors/movements during the NCV/EMG exam were inconsistent with his complaints, noting that his movements were very slow and he seemed to overreact when directly observed, but he did not exhibit the same difficulty in performing the maneuvers when his movements were casually observed. The reviewing examiner noted the initial urological consultation in which the Veteran denied any bladder dysfunction, only reporting that he felt like he does not empty well when he is having a flare-up of his back pain, and that all testing for neurological impairment was normal. The reviewing nurse practitioner opined that, based on the NCV/EMG findings, there are no neurological manifestations that would cause a functional impairment related to the left L5 radiculopathy, noting that the slowed H reflex is an asymptomatic finding. The reviewing examiner noted that no right L5 radiculopathy or bladder impairment was identified. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of a separate compensable rating for bladder or bowel impairment as a neurological manifestation of the Veteran's service-connected lumbar spine disability. The Board notes the Veteran's complaints of urinary difficulties, including reports on June 2009 VA examination that he had difficulty starting urinary flow when his back hurt and that he generally urinated twice per hour during the day and once per night, and on December 2012 VA examination that he does not void well when his back pain flares up. In essence, he alleges that his urinary frequency/voiding dysfunction is a neurological manifestation of his service-connected lumbar spine disability (and warrants a separate compensable rating on that basis). See 38 C.F.R. § 4.71a. Whether or not any urinary frequency/voiding dysfunction shown is a manifestation of lumbar spine disc disease is a medical question that is beyond the realm of resolution by lay observation. It requires medical knowledge/training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Court). The only competent (medical) evidence in the record that specifically addresses whether the Veteran's urinary difficulties are indeed a neurological manifestation of his service-connected lumbar spine disability is in the reports of the VA examinations cited above. The December 2012 VA examining urologist opined that the Veteran's urinary pattern is that of obstruction and that he probably has early BPH. In reaching this conclusion, the examiner noted that urodynamics studies showed no uninhibited contractions and no evidence of an atonic neurogenic bladder, and when asked to void the Veteran had a good detrusor contraction; his flow was low but he was able to empty his bladder satisfactorily. As the opinions are by a physician (who is qualified to provide them), were based on a review of the record, and include an explanation of rationale with citation to factual data, they have substantial probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Because there is no competent evidence to the contrary, they are persuasive. The Board has also considered the Veteran's lay statements alleging that his urinary symptoms are a neurologic manifestation of his service-connected lumbar spine disability, but finds that they lack probative value. They are bare expressions of lay opinion (in a medical matter), unaccompanied by any supporting medical opinion or citation to medical literature. Therefore, they are not probative evidence as to whether a separate compensable rating is warranted for bladder impairment. Turning to other neurological impairment, the Veteran contends that he has left lower extremity radiculopathy secondary to his service connected lumbar disc disease. Notably, the November 2012 VA examining neurosurgeon opined that the Veteran has both left and right lower extremity radiculopathy secondary to his previous spinal pathology including his previous surgery; and the neurologist who conducted the December 2012 NCV/EMG testing opined that the study was abnormal for prolongation of the H reflex on the left and evidence of acute denervation in the gluteus medius, and this is most likely due to a left L5 radiculopathy. As these opinions were given by physicians who are qualified to provide them, were based on a review of the record as well as examination of the Veteran, and include explanation of rationale with citation to factual data, they have substantial probative value. The Board finds the opinions to be persuasive that the Veteran is reasonably shown to have left lower extremity neurological impairment consistent with mild incomplete paralysis of the sciatic nerve, warranting a 10 percent (but no higher) rating . Therefore, a separate compensable rating for left leg radiculopathy as a neurological manifestation of the Veteran's service connected lumbar disc disease is indeed warranted. ORDER A 10 percent rating for left leg radiculopathy as a neurological manifestation of the Veteran's lumbar disc disease is granted, subject to the regulations governing payment of monetary awards; separate ratings for neurological manifestations of lumbosacral disc disease other than right and left lower extremity radiculopathy are denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs