Citation Nr: 1335500 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 13-12 885 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to an initial rating (evaluation) in excess of 20 percent for intervertebral disc syndrome with left lower extremity radiculopathy. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Aaron Bill, Associate Counsel INTRODUCTION Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). Expedited handling is requested. The Veteran, who is the appellant in this case, served on active duty from April 1943 to November 1947. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2012 rating decision which continued the rating for the service connected osteoarthritis of the lumbar spine and granted service connection for intervertebral disc syndrome with left lower extremity radiculopathy and assigned a separate 20 percent rating effective in November 2011. The February 2012 notice of disagreement indicated that the Veteran disagreed with the 20 percent rating assigned for the left lower extremity radiculopathy. The statement of the case addressed the issue regarding the left lower extremity radiculopathy. The Veteran indicated in his VA Form 9 received in May 2013 that he disagrees with his current 40 percent rating for both of his service-connected disabilities. Only the claim for an increased initial rating for his service-connected intervertebral disc syndrome with left lower extremity radiculopathy is currently in appellate status and therefore is the issue adjudicated below. As it appears that the Veteran has raised the issue of entitlement to a higher rating for the service-connected osteoarthritis of the lumbar spine, this matter is referred to the RO for the appropriate action. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The service-connected for intervertebral disc syndrome with left lower extremity radiculopathy is manifested complaints of numbness and pain and findings of paresthesias and/or dysesthesias sensory loss and decreased light touch in the left lower leg and ankle, and foot; moderately severe incomplete paralysis of the sciatic nerve is not demonstrated. CONCLUSION OF LAW For the entire appeal period, the criteria for an initial disability evaluation in excess of 20 percent for the service-connected for intervertebral disc syndrome with left lower extremity radiculopathy have not been met. 38 U.S.C.A. § 1110, 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2011, prior to the initial adjudication of the claim. The letter fully addressed all three notice elements and informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States 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. In this case, notice consistent with the Court's holding in Dingess was provided in the September 2011 letter. The claim on appeal arises from the Veteran's disagreement with the initial disability rating of 20 percent assigned after the grant of service connection. The courts have held, and VA's General Counsel has interpreted that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-03 (separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). See also 38 C.F.R. § 3.159(b)(3)(i) (there is no duty to provide VCAA notice upon receipt of a notice of disagreement). The Board finds the duty to notify provisions of VCAA have been fulfilled. VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that 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 all pertinent treatment records identified by the Veteran. All available service treatment records are associated with the record. Private treatment records are associated with the record as well. The RO afforded the Veteran a VA examination in November 2011 in order to obtain medical evidence of the nature and severity of the service-connected intervertebral disc syndrome with left lower extremity radiculopathy. The examination was adequate. The evaluation was performed by a medical professional based on either a review of claims file or solicitation of history and symptomatology from the Veteran, and examination of the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). The VA examination findings are accurate and fully descriptive and address the rating criteria in the rating schedule. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has asserted in his March 2012 notice of disagreement and his May 2013 VA Form 9 that his condition has worsened since his VA examination in November 2011. The Veteran was scheduled for an additional examination in July 2013. In a July 2013 deferred rating action is was indicated that the Veteran was contacted and he stated the was unable to report for the examination and he wanted the claim to be considered based on the evidence of record. The Veteran was also afforded the opportunity to testify at a hearing and he cancelled his scheduled hearing and requested the Board adjudicate his appeal without offering his testimony. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. 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). Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2013). Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating will be assigned if the disability picture more nearly 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. §§ 4.3, 4.7. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. See also Hart v. Mansfield, 21 Vet. App. 505 (2007) (where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible). Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia. 38 C.F.R. § 4.124a, Diagnostic Codes 8520-8730. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. 38 C.F.R. § 4.124a. Disability ratings of 20 and 40 percent are warranted, respectively, for moderate and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. Id. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The term "incomplete paralysis," with respect to peripheral nerve injuries, indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration. 38 C.F.R. § 4.124a (2013). Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. § 4.6 (2013). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.2, 4.6 (2013). 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 veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Increased Initial Rating The Board has carefully reviewed the lay and medical evidence of record and finds that the preponderance of the evidence is against the assignment of an initial evaluation in excess of 20 percent for the service-connected intervertebral disc syndrome with left lower extremity radiculopathy for the entire appeal period. The Veteran's service-connected intervertebral disc syndrome with left lower extremity radiculopathy is as 20 percent disabling under the provisions of 38 C.F.R. § 4.124a , 38 C.F.R. § 4.71a , Diagnostic Code 8520-5242. In the selection of diagnostic code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2013). The hyphenated diagnostic code in this case indicates that paralysis of the sciatic nerve, under Diagnostic Code 8520, was the service-connected disorder, and that degenerative arthritis of the spine, under Diagnostic Code 5242, is a residual condition. The weight of the lay and medical evidence of record, including VA treatment records and reports of VA examinations, shows that the service-connected intervertebral disc syndrome with left lower extremity radiculopathy is manifested by moderate, incomplete paralysis of the sciatic nerve. The November 2011 VA examination showed upon sensory examination that the Veteran suffered from numbness, pain, paresthesias and/or dysesthesias sensory loss and decreased light touch in the left lower leg and ankle, and foot. Physical examination revealed that the left knee reflex was 2/2 and the left ankle reflex was 2/2. There was no muscle atrophy, the function of the ankle and toes on each foot (ankle dorsiflexion and great toe extension) were 4/5, limited to active movement against some resistance, and gait and balance were normal. The examiner indicated that the radiculopathy in the Veteran's sciatic nerve was localized to the left side and was of a moderate degree of severity. The Veteran also submitted a radiologist's report from a private lumbar MRI performed in August 2012 by Dr. R.Q. This evidence, however, is afforded little probative weight as it indicated that all of the evidence suggests lumbar radiculopathy but does not provide any findings as to the severity of the left lower extremity radiculopathy.. For these reasons, the VA examination report is given more probative weight because it contains a thorough report of the Veteran's symptoms for his service-connected disability and contains clinical findings upon which the Board can rely to a rate the Veteran's disability. A disability rating in excess of 20 percent is not warranted for the service-connected intervertebral disc syndrome with left lower extremity radiculopathy for the entire appeal period. The medical evidence shows that the radiculopathy of the left lower extremity is manifested by numbness, pain, paresthesias and/or dysesthesias sensory loss in the left lower extremity. The Board finds that the disability picture more closely approximates moderate incomplete paralysis or moderate impairment. The weight of the lay and medical evidences shows that the service-connected intervertebral disc syndrome with left lower extremity radiculopathy is manifested by moderate, incomplete paralysis of the sciatic nerve in the left lower extremity. The sensory changes are decreased sensation, pain, paresthesias and/or dysesthesias, sensory loss and numbness to the left lower extremity. The November 2011 VA examination report indicates that the examiner opined that the nerve dysfunction was moderate radiculopathy. The examination report shows that there is no muscle atrophy or gait abnormality and the Veteran did not report use of any assistive devices at the examination. The decreased sensation due to the radiculopathy of the left lower extremity only affects the left leg and ankle, and foot. The weight of the lay and medical evidence does not show that the service-connected left lower extremity radiculopathy causes moderately severe or severe incomplete paralysis with marked muscular atrophy. As such, the Board concludes that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent under Diagnostic Code 8520 for left lower extremity radiculopathy, and the claim for a higher rating is denied. Extraschedular Consideration and TDIU Finally, the Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). 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 the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. When the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has 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 for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's service-connected intervertebral disc syndrome with left lower extremity radiculopathy is manifested by numbness, pain, paresthesias and/or dysesthesias sensory loss and decreased light touch in the left lower leg and ankle, and foot ,wholly sensory changes or manifestations. These symptoms or impairments are contemplated by the rating schedule, and the assigned schedular evaluation, therefore, is adequate. The rating criteria for radiculopathy contemplate different degrees of paralysis including complete paralysis of the nerve in question. The rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe radiculopathy symptoms than currently shown by the evidence. For this reason, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. The Court held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the instant case, the Veteran has not alleged that he is, or was at any time during the appeal period, unemployable due to the service-connected left lower extremity radiculopathy; therefore, a TDIU claim is not raised by the record or the Veteran. ORDER Entitlement to an initial rating (evaluation) in excess of 20 percent for intervertebral disc syndrome with left lower extremity radiculopathy is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs