Citation Nr: 1336009 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-02 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE 1. Entitlement to an initial disability evaluation in excess of 20 percent for service-connected degenerative disc disease, lumbar spine (hereinafter "lumbar spine disability). 2. Entitlement to separate ratings for neurological manifestations of the service-connected residuals of lumbar spine disability, including radiculopathy of the lower extremities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to April 1969. This matter comes before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a November 2007 rating decision of the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Houston, Texas, in which the Veteran was granted service connection for a lumbar spine disability and assigned a 20 percent disability evaluation, effective February 7, 2007. The Veteran appealed the initial assigned disability rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection). In December 2010, the Veteran testified before the undersigned Acting Veterans Law Judge (hereinafter "AVLJ") during a hearing at the Houston RO. A transcript of the hearing has been associated with the Veteran's claims folder. The pertinent VA regulation provides that separate ratings are assigned for any associated neurological abnormalities associated with a service-connected spine disability (in this case degenerative disc of the lumbar spine) under the appropriate diagnostic code(s). 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Therefore, the issue of separate evaluations for right and left lower extremity radiculopathy is part and parcel of the claim for a higher initial rating for the lumbar spine disability, and the claims are properly included as on appeal, as set forth on the title page of this decision. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA (hereinafter "Virtual VA") to ensure a complete assessment of the evidence. Additional, pertinent medical evidence was added to Virtual VA in June 2013; however, this medical evidence pertained to claims unrelated to the Veteran's lumbar spine disability. As such, the Board will proceed to consider the appeal on the merits. See 38 C.F.R. § 20.1304(c) (2012). The issue of entitlement to an initial disability evaluation in excess of 20 percent for service-connected lumbar spine disability is REMANDED to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matters on appeal have been accomplished. 2. Neurological abnormalities (radiculopathy) of the right and left lower extremities, in the form of radiculopathy associated with the service-connected lumbar spine disability, have been present since the initial claim for service connection for a low back disability. CONCLUSIONS OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for separate disability evaluations for left and right lower extremity radiculopathy have been met for the entire period of the appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, 4.123, 4.124, 4.124a, Diagnostic Codes (DCs) 5235-5243, 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code (hereinafter "38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations (hereinafter "38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (hereinafter "Court") (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issues 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. See 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. The Duties to Notify and Assist The Veterans Claims Assistance Act (hereinafter "VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his 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) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). With regard to notice regarding an initial evaluation following the grant of service connection, once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Filing a notice of disagreement (hereinafter "NOD") begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case; hence further VCAA notice is not required with regard to the initial rating appeal. Pre- and post-adjudication VCAA letters dated in February 2007, April 2007 and February 2009, collectively explained the evidence necessary to substantiate the claim, and informed the Veteran of his and VA's respective duties for obtaining evidence. These letters also explained how a disability rating is determined for a service-connected disability and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). The claim was most recently readjudicated in the March 2010 supplemental statement of the case (hereinafter "SSOC"). Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains in-service and post-service medical treatment records, and reports of VA examinations (also known in the record as Disability Benefits Questionnaire or "DBQ") (October 2007 and September 2012). With respect to the VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). These VA examination reports generally reflect review of the claims file and/or clinical record, examination of the Veteran, and description and evaluation of his lumbar spine disability and residuals. In particular, these examination findings are sufficient for proper application of the relevant rating criteria and adequate for the purpose of adjudication the issue decided hereinbelow. At the August 2012 hearing, the undersigned AVLJ and representative for the Veteran outlined the issue on appeal and engaged in a colloquy as to substantiation of the claim, including identifying relevant types of evidence. Overall, the hearing was legally sufficient and the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the claim on appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issue has been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). The Merits of the Claim- Separate Neurological Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 (2012). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2013). 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 condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, are to be rated under an appropriate diagnostic code. Neurological manifestations are generally rated by analogy to neuralgia of the sciatic nerve under 38 C.F.R. § 4.124a, Diagnostic Code 8520, for paralysis of the sciatic nerve. See 38 C.F.R. §§ 4.20, 4.124a (2012). Under Diagnostic Code 8520, disability ratings of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" with 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 the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether neurological abnormalities (radiculopathy) of the right and left lower extremities, in the form of radiculopathy associated with the service-connected low back disability, have been present since the initial claim for service connection for a lumbar spine disability. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for separate disability evaluations of 20 percent for left and right lower extremity radiculopathy have been met for the entire period of the appeal. 38 C.F.R. §§ 3.102, 4.3, 4.7. An October 2007 VA spine examination report indicates the Veteran denied a history of urinary incontinence, fecal incontinence, obstipation, erectile dysfunction, numbness, leg or foot weakness, falls and visual dysfunction. However, he described his pain distribution as constant, knifelike and sharp/stabbing low back with radiation to the right leg and right ankle. On physical examination, the Veteran was observed to have normal motor and sensory examinations, as well as normal detailed reflex examination at the knee; however, the ankle jerk was hypoactive. Lasegue's sign was positive on both sides, but was worse on the right side. The Veteran was diagnosed with advanced degenerative disc disease of the lumbar spine with limited motion, and with chronic strain/sprain of the lumbar spine. In August 2008, the Veteran complained of back pain, increased difficulty standing or sitting for any length of time, and pain radiating to the right leg, mid-calf, with occasional numbness and tingling. The Veteran is competent to indicate that he experiences symptoms of pain radiating down his right leg. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); 38 C.F.R. § 3.159(a)(2). A VA examination report, dated in September 2012, shows physical findings of radiculopathy on examination. Specifically, the examiner observed the Veteran has no constant pain, but has moderate, intermittent pain in the right and left lower extremities in the lateral upper thighs. The examiner noted the Veteran did not have paresthesias and/or dysesthesias in either right or left lower extremity, but did have mild numbness in both the right and left lower extremities in the anterior upper thighs. There were no other signs or symptoms of radiculopathy observed. The examiner indicated that both the left and right femoral nerve roots were involved, and characterized the severity of the radiculopathy as moderate on both the right and left sides. No other neurologic abnormalities or findings were found to be related to the lumbar spine disability. The Board finds that the evidence is at least in equipoise on the question of whether the criteria for separate disability evaluations of no more than 20 percent for left and right lower extremity radiculopathy have been met for the entire period of the appeal, indicating findings of no more than moderate incomplete paralysis of the sciatic nerve. On both VA examination and during VA treatment the Veteran has complained of neurological symptoms of pain and numbness in his right and left lower extremities. Moreover, the September 2012 VA examiner found that the Veteran's right and left lower extremity radiculopathy was related to his service-connected lumbar spine disability, and his radiculopathy was characterized as moderate in severity. However, the lay and clinical record fail to support a finding in excess of 20 percent for radiculopathy of the right and left lower extremities during any period of the appeal. In this regard, the Veteran has not characterized his complaints of radiculopathy of the lower extremities as severe. In fact he has reported only occasional numbness and tingling. Also, the objective medical evidence of record shows he has been evaluated with no more than moderate radiculopathy. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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 terminology such as "severe" by VA examiners and others, 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 C.F.R. §§ 4.2, 4.6 (2013). Given the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for separate compensable evaluations of 20 percent for radiculopathy of the right and left lower extremities have been met for the entire period of the appeal, as part and parcel of his claim for service connection for the lumbar spine disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. As a final matter, the Board's findings above are based on schedular evaluation. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Schedular ratings are based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. 38 C.F.R. § 4.15. To afford justice in exceptional situations, however, an extraschedular rating may also be provided. 38 C.F.R. § 3.321(b). The Board may determine, in the first instance, that a veteran has not presented evidence warranting referral for extraschedular consideration, provided that it articulates the reasons or bases for that determination. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). This determination follows a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). 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, the level of severity and symptomatology of a veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe a veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate and no referral is required. Id. If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-16. If analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the case be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating. Id. In the instant case, as explained in detail above, the Veteran's radiculopathy of the lower extremities consisting of a disability picture involving pain and weakness primarily involving decreased ability to sleep through the night, or walk or stand for prolonged periods of time unaided. Although the Veteran testified in his August 2012 Board hearing that he is unable to sleep for over an hour and a half at night, he has not indicated that his sleep impairment has resulted in such factors as marked interference with employment or frequent periods of hospitalization. This disability picture is reasonably described by the applicable schedular rating, and it does not present an usual or exceptional disability picture. Accordingly, referral for extraschedular consideration is not in order. See 38 C.F.R. § 3.321(b); Thun, 22 Vet. App. at 115. ORDER A separate 10 percent disability rating, but not higher, for radiculopathy of the right lower extremity, associated with the service-connected lumbar spine disability, is granted, subject to the criteria applicable to the payment of monetary benefits. A separate 10 percent disability rating, but not higher, for radiculopathy of the left lower extremity, associated with the service-connected lumbar spine disability, is granted, subject to the criteria applicable to the payment of monetary benefits. REMAND In August 2012, the Veteran testified that his lumbar spine disability had been treated at the Fort Stockton VA Medical Center (hereinafter "VAMC") for the previous 2 to 3 years. However, records from this facility are not located in the claims file, which only contains VA treatment records, dated to 2010, from the Albuquerque VAMC. Complete VA treatment records from the Fort Stockton VAMC must be associated with the claims file. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must request the Veteran to identify all records of VA and non-VA health care providers who have treated his lumbar spine disability. The RO/AMC should take appropriate steps to obtain copies of any outstanding treatment records, to include any treatment records from the Fort Stockton VAMC. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Thereafter, the RO/AMC must consider all of the evidence of record and readjudicate the claims for service connection. If the benefit sought is not granted, the RO/AMC must issue a supplemental statement of the case and allow the Veteran and his representative an opportunity to respond. The Veteran 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). ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs