Citation Nr: 1336847 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 09-07 544 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for the service-connected right lower extremity radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran had active service from July 1987 to July 2007. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the RO. In July 2011, the Veteran testified at a hearing from the RO via videoconferencing technology before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the Veteran's VA claims folder. The Board observes that service connection for radiculopathy of the right lower extremity was granted in a September 2009 rating decision. The Veteran filed a timely Notice of Disagreement and the issue of an increased rating for radiculopathy of the right lower extremity was included in the April 2010 Supplemental Statement of the Case (SSOC). In December 2011, the Board remanded the issue for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). During the July 2011 hearing, the Veteran raised the issue of an increased rating in excess of 10 percent for the service-connected degenerative joint disease of the right knee. See the hearing transcript, page 3. The Board in December 2011 referred this natter to the Agency of Original Jurisdiction (AOJ). As this issue has not been adjudicated, the Board continues to refer it to the AOJ for appropriate action. The records in the Virtual VA paperless claims processing system include a brief filed by the Veteran's representative in October 2013. Other records are either duplicative of the evidence of record or are not pertinent to the present appeal. There are no records in the Veterans Benefits Management System. FINDING OF FACT The service-connected right lower extremity radiculopathy is not shown to be manifested by more than mild incomplete paralysis. CONCLUSION OF LAW The criteria for the assignment of an initial rating higher than 10 percent for the service-connected right lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.124a including Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in August 2008. The Veteran was notified of the evidence needed to substantiate the claim for an increased rating as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and the effective dates. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. The service treatment records, post-service treatment records, a copy of the hearing transcript, and lay statements have been associated with the record. Additionally, the Veteran was afforded VA examinations in December 2007, March 2008, October 2008, November 2008, August 2009, and in December 2011 with an addendum opinion in February 2012 whereby the December 2011 examiner stated that the claim folder was reviewed and his findings remained unchanged. The Veteran does not contend, nor does the record show that his service-connected right lower extremity radiculopathy increased in severity since the December 2011 VA examination and a reexamination under 38 C.F.R. § 3.327 is not necessary. The Board finds that the treatment records and the VA examinations are adequate for rating purposes. Thus, with respect to the Veteran's claim, there is no additional evidence which needs to be obtained. During the hearing, the Veterans Law Judge discussed with the Veteran the issue on appeal, the evidence required to substantiate the claim, and asked questions to elicit information relevant to the claim. This action supplemented VA's compliance with VCAA, 38 C.F.R. § 3.103, and Bryant v. Shinseki, 23 Vet. App. 488 (2010). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Legal Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings". Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The service-connected low back disability manifested by radiculopathy of the right lower extremity is rated under Diagnostic Code 8520 based on impairment of the sciatic nerve. Under Diagnostic Code 8520, the criteria for a 10 percent rating are mild incomplete paralysis. The next higher, 20 percent, rating under Diagnostic Code 8520 pertains to moderate incomplete paralysis; moderately severe incomplete paralysis warrants a higher 40 percent rating; and severe incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. A note which precedes the rating criteria provides that when the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. In rating peripheral nerve disability, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123 . Evidence and Analysis The evidence shows that the Veteran reports having pain that radiates from the lower back down the right lower extremity, his neurological impairment of the right lower extremity is not manifested by foot drop, significant muscle weakness, significant sensory loss, or significant loss of reflexes. On VA examination in December 2007, the Veteran complained of having radiating pain in his lower back about four times per month. Neurologically, motor strength, tone, and light touch sensation were normal. Gait was normal, and the deep tendon reflexes were 1+. On VA examination in March 2008, the examiner was of the opinion that the Veteran only had subjective complaints of radiculopathy and that there were no objective indications of lumbar radiculopathy. Subsequently, the evidence likewise reflects only mild neurological symptomatology due to the right lower extremity radiculopathy. On VA examination in October 2008, there was no abnormality on motor or sensory examination. The examiner found no muscle atrophy, weakness, reflex abnormality or sensory loss in the right lower extremity. The diagnosis was that of chronic low back pain without evidence of radiculopathy or neuropathy. While the examiner at a VA examination in November 2008 was unable to elicit reflexes at the knees, reflexes at the ankles were 2+ . The sensory examination and his gait were within normal limits. The medical records from the Moncrieff Army Community Hospital dating from 2008 to 2010 showed complaints of back pain to include radiating low back pain. While the records noted lumbar neuritis among the Veteran's medical conditions, neurological evaluations show that motor, balance, gait, stance, reflexes and knee jerks were normal. See May 2008, July 2008 records. In January 2009, the records showed no sensory disturbances, to include tingling, burning sensation or numbness. Sensation and reflexes were normal. In July 2009, balance and gait were normal, and patellar reflexes were hyporeflexive. In March 2010, the neurological system was evaluated as normal. On VA examination in August 2009, the Veteran complained of radiating low back pain along with numbness during a flare-up. The neurologic examination showed 4/5 motor strength of the hamstrings of the right leg, otherwise the right lower extremity had 5/5 strength in hip flexors, knee extensors, and ankle plantar flexors and dorsiflexors. Deep tendon reflexes were 2+ for the L4 and D1. Sensation was intact, and his gait was noted to be normal. On VA examination in December 2011, the diagnosis was that of paralysis of the sciatic nerve. With the exception of right hip flexion being 4/5, muscle strength was normal for knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. The examiner found no muscle atrophy and knee and ankle reflexes were hypoactive. Sensation to light touch testing of the upper anterior thigh, knee, lower leg/ankle, and foot/toes was normal. Straight leg testing was negative, and the examiner was of the opinion that there was no objective evidence of lumbar radiculopathy or any other neurologic abnormalities related to the thoracolumbar spine, to include bowel or bladder problems and pathologic reflexes. The Board has also considered the Veteran's lay statements that describe his right lower extremity radiculopathy. The Veteran is certainly competent to report his personal observations. In July 2011, he testified that he did not feel numbness or tingling in his foot, but instead had pain that radiated down the backside of his right thigh. The Veteran, who also is service connected for degenerative joint disease of the right knee, testified that he experienced pain in his right knee that did not radiate from the back of his right leg. The Board finds that the lay and medical evidence of record is consistent with "mild" or "slight" loss of reflex and motor strength as manifestations of neurological impairment due to the service-connected right lower extremity radiculopathy. Consequently, the service-connected disability picture does not meet the criteria for finding moderate incomplete paralysis of the sciatic nerve; for these reasons, a rating in excess of 10 percent under Code 8520 is not warranted. 38 C.F.R. § 4.7. As the evidence does not show that nerves other than the sciatic nerve are affected by the service-connected right lower extremity radiculopathy, consideration of other diagnostic codes for rating peripheral nerves is not warranted. As there are no identifiable periods of time during the appeal period when the Veteran's right lower extremity radiculopathy was persistently more severe than the extent of disability contemplated under the 10 percent rating assigned, higher "staged ratings" are not warranted. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Extraschedular Consideration While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that the service-connected right lower extremity radiculopathy is manifested by pain, weakened reflexes and motor strength and that the rating criteria contemplate these impairments. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER An initial rating in excess of 10 percent for the service-connected right lower extremity radiculopathy is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs