Citation Nr: 1335180 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-16 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE 1. Entitlement to a compensable disability rating from June 1, 2009 to January 24, 2013 for service-connected radiculopathy of the left lower extremity. 2. Entitlement to a disability rating in excess of 40 percent from January 24, 2013 for service-connected radiculopathy of the left lower extremity. 3. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran had active service from May 1970 to January 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which decreased the separate rating for radiculopathy of the left lower extremity from 10 percent to noncompensable. In May 2011, the Veteran was afforded a personal hearing before the undersigned. A transcript of the hearing is of record. In November 2012, the Board remanded the case for further development. In the November 2012 Board remand, the stated issue on appeal was entitlement to a disability rating in excess of 40 percent for lumbosacral strain with left lower extremity radiculopathy at L5-S1. The issue has been changed to more accurately reflect the issues on appeal. The record reasonably raises a claim for a total disability rating based on individual unemployability, which is not a separate claim, but a part of the claim for increase on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to TDIU 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. From June 1, 2009 to January 24, 2013, the Veteran's radiculopathy of the left lower extremity is productive of moderate incomplete paralysis of the sciatic nerve. 2. From January 24, 2013, the Veteran's radiculopathy of the left lower extremity is productive of moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating from June 1, 2009 to January 24, 2013 for service-connected radiculopathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2013). 2. The criteria for a disability rating in excess of 40 percent from January 24, 2013 for service-connected radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The appeal arises from the Veteran's disagreement with the RO decision to reduce the separately assigned rating for radiculopathy of the left lower extremity to noncompensable. The Veteran waived any error in the content or timing of the notice provided at his Board hearing in May 2011. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination and the records considered in that determination were obtained in April 2011. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in September 2010 and January 2013; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). As the reports of the VA examinations are based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); Dingess/Hartman, 19 Vet. App. at 486. II. Analysis Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Veteran is seeking increased disability evaluations for service-connected left lower extremity radiculopathy. The Veteran's radiculopathy of the left lower extremity is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520, which rates incomplete or complete paralysis of the sciatic nerve. Mild incomplete paralysis warrants a 10 percent disability rating; moderate incomplete paralysis warrants a 20 percent disability rating; moderately severe incomplete paralysis warrants a 40 percent disability rating; and, severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. The Veteran is assigned a noncompensable rating prior to January 24, 2013 and a 40 percent rating from January 24, 2013. Rating from June 1, 2009 to January 24, 2013 From June 1, 2009 to January 24, 2013, the Veteran is assigned a noncompensable rating. VA treatment in March 2009 showed the Veteran's sensory to be good with normal strength. Straight-leg raise test was positive on the left lower extremity. During a September 2010 VA examination, the Veteran complained of having pain from sciatica down the left lower extremity to the left foot, which was progressively worse. Reflex testing was consistently 1+ for both extremities. Sensory examination revealed sciatic nerve involvement with decreased light touch on the left lower extremity and dysesthesias of pain, numbness, and tingling down the left anterior and lateral thigh to the top of the foot. Muscle strength was 4+ throughout the left lower extremity due to left sciatica. Among the effects on occupational activities, decreased strength of the lower extremity was listed. During the period from June 1, 2009 to January 24, 2013, the Veteran's disability included involvement that was not wholly sensory, demonstrating weakness of the lower extremity. This weakness was described as mild and was consistently 4+ throughout the period, indicating moderate symptoms. There is no evidence indicating that the symptoms were more than moderate. Given the consistent findings of moderate symptoms, and no finding of a moderately severe or worse degree of incomplete paralysis of the sciatic nerve, a rating of 20 percent is warranted. Rating from January 24, 2013 From January 24, 2013, the Veteran's radiculopathy of the left lower extremity is rated as 40 percent, indicating moderately severe symptoms. During the January 2013 VA examination, the Veteran was found to have no muscle atrophy and muscle strength was normal at 5+ for both lower extremities. His reflex examination was abnormal showing 1+ for the left knee and ankle, as was his sensory examination showing decreased sensory in the left thigh, ankle and foot/toes. The Veteran's radiculopathy of the left sciatic nerve caused severe constant pain, parathesias, and numbness of the left lower extremity. The Veteran's radiculopathy is shown to be manifested by symptoms of severe pain, numbness, parathesias and decreased reflex and sensory in the left lower extremity from January 2013, warranting a 40 percent rating. However, since there is no muscular atrophy associated with his disability, the criteria for the 60 percent rating are not met. The preponderance of the evidence is against a rating higher than 20 percent from June 2009 to January 24, 2013, and against a rating higher than 40 percent from January 24, 2013. There is no doubt to be resolved and higher ratings for either of those periods is not warranted. Extraschedular Consideration The rating criteria considered in this case reasonably describe the Veteran's disability level and symptomatology. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected radiculopathy of the left lower extremity is adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to a 20 percent disability rating from June 1, 2009 to January 24, 2013 for service-connected radiculopathy of the left lower extremity is granted. Entitlement to a disability rating in excess of 40 percent from January 24, 2013 for service-connected radiculopathy of the left lower extremity is denied. REMAND An examination is necessary to determine whether the Veteran's service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. The Veteran has been granted Social Security disability benefits based on his spine and radiculopathy disabilities, both of which are service connected. Although VA opinions have been provided as to how the Veteran's service-connected disabilities affect his employment, there is no medical evidence regarding the issue of whether the Veteran's service connected disabilities, in the aggregate, preclude meaningful employment. Accordingly, an examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination regarding entitlement to TDIU. The claim folder must be made available to and reviewed by the examiner. The examiner must opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities of posttraumatic stress disorder, lumbosacral strain, radiculopathy of the left lower extremities, and chronic recurrent prostatitis, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. A complete rationale for all opinions expressed and conclusions reached must be provided. 2. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs