Citation Nr: 1337679	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  09-07 842	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for a foot disability manifested by pain with swelling.

2.  Entitlement to service connection for a disability manifested by enlarged lymph nodes.

3.  Entitlement to an initial disability rating in excess of 10 percent for arthritis of the lumbosacral spine, for the period prior to May 23, 2013.

4.  Entitlement to a disability rating in excess of 20 percent for arthritis of the lumbosacral spine, for the period from May 23, 2013.

5.  Entitlement to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity.

6.  Entitlement to a disability rating in excess of 20 percent disabling for radiculopathy of the left lower extremity.

7.  Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease of the cervical spine.

8.  Entitlement to a disability rating in excess of 20 percent disabling for radiculopathy of the left upper extremity.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Counsel 


INTRODUCTION

The Veteran served on active duty from July 2006 to December 2007, plus had 4 months 4 days of prior active service; and had additional periods of active duty for training in the Army National Guard.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision that, in pertinent part, denied service connection for a foot disability manifested by pain with swelling; and granted service connection for arthritis of the lumbosacral spine and for degenerative disc disease of the cervical spine, evaluating each as 10 percent disabling effective December 5, 2007.  The Veteran timely appealed the denial of service connection and for higher initial ratings.

These matters also come to the Board on appeal from an August 2008 rating decision that, in pertinent part, denied service connection for a disability manifested by enlarged lymph nodes.  The Veteran timely appealed.

The record reflects that the Veteran canceled her request for a hearing before RO personnel in August 2013.

In August 2013, the RO increased the disability evaluation to 20 percent for arthritis of the lumbosacral spine; and assigned separate disability ratings of 20 percent for radiculopathy of the left lower extremity, 10 percent for radiculopathy of the right lower extremity, and 20 percent for radiculopathy of the left upper extremity-each effective May 23, 2013.  Because higher evaluations are available for the spinal disabilities and for associated radiculopathy, both prior to and from May 23, 2013; and the Veteran is presumed to seek the maximum available benefit for a disability, each of the claims remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

The Court has recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  The Board notes that the Veteran already has been awarded a TDIU.  Hence, it is unnecessary to remand the matter for further action.

Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of her Virtual VA file.

The issues of service connection for a foot disability manifested by pain with swelling, and for a disability manifested by enlarged lymph nodes are addressed in the REMAND portion of the decision below; and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.



FINDINGS OF FACT

1.  For the period from December 5, 2007, to October 16, 2012, the Veteran's arthritis of the lumbosacral spine has been manifested by a combined range of motion of the thoracolumbar spine beyond 120 degrees but less than 235 degrees, and by painful motion; ankylosis, incapacitating episodes, and doctor-prescribed bed rest have not been demonstrated.

2.  For the period from October 17, 2012, the Veteran's arthritis of the lumbosacral spine has been manifested by forward flexion of the thoracolumbar spine limited to 60 degrees and by painful motion, muscle spasm, and an antalgic gait; ankylosis, incapacitating episodes, and doctor-prescribed bed rest are not demonstrated.

3.  For the period from October 17, 2012, the Veteran has exhibited mild incomplete paralysis of the sciatic nerve of the right lower extremity; moderate or severe incomplete paralysis, or complete paralysis has not been demonstrated.

4.  For the period from October 17, 2012, the Veteran has exhibited moderate incomplete paralysis of the sciatic nerve of the left lower extremity; severe incomplete paralysis, or complete paralysis has not been demonstrated.

5.  Throughout the rating period, the Veteran's degenerative disc disease of the cervical spine has been manifested by forward flexion beyond 30 degrees, and by a combined range of motion beyond 170, and by painful motion; ankylosis, incapacitating episodes, and doctor-prescribed bed rest have not been demonstrated.

6.  For the period from May 23, 2013, the Veteran has exhibited mild incomplete paralysis of the middle radicular nerve group of the left upper extremity; moderate or severe incomplete paralysis, or complete paralysis has not been demonstrated.



CONCLUSIONS OF LAW

1.  For the period from December 5, 2007, to October 16, 2012, the criteria for an initial disability rating in excess of 10 percent for arthritis of the lumbosacral spine have not been met or nearly approximated.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2013).

2.  For the period from October 17, 2012, the criteria for a disability rating of 20 percent, but no higher, for arthritis of the lumbosacral spine are met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2013).

3.  For the period from May 23, 2013, the criteria for a disability rating in excess of 20 percent for arthritis of the lumbosacral spine have not been met or nearly approximated.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2013).

4.  For the period from October 17, 2012, the criteria for a separate disability evaluation of 10 percent, but no higher, for associated incomplete paralysis of the sciatic nerve of the right lower extremity are met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2013).

5.  For the period from May 23, 2013, the criteria for a separate disability evaluation in excess of 10 percent for associated incomplete paralysis of the sciatic nerve of the right lower extremity have not been met or nearly approximated.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2013).

6.  For the period from October 17, 2012, the criteria for a separate disability evaluation of 20 percent, but no higher, for associated incomplete paralysis of the sciatic nerve of the left lower extremity are met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2013).

7.  For the period from May 23, 2013, the criteria for a separate disability evaluation in excess of 20 percent for associated incomplete paralysis of the sciatic nerve of the left lower extremity have not been met or nearly approximated.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2013).

8.  The criteria for an initial disability rating in excess of 10 percent for degenerative disc disease of the cervical spine have not been met or nearly approximated.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2013).

9.  For the period from May 23, 2013, the criteria for a separate disability evaluation in excess of 20 percent for associated incomplete paralysis of the middle radicular nerve group of the left upper extremity have not been met or nearly approximated.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8511 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a 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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

The Veteran's claims arise from her disagreement with the initial evaluations assigned following the grants of service connection. Courts have held that once service connection is granted, the claim is substantiated; additional notice is not required, and 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).

The Board concludes that VA's duty to assist has been satisfied.  All available records identified by the Veteran as relating to the claims for higher initial disability ratings have been obtained, to the extent possible.  The RO provided the Veteran with appropriate VA examinations, and there is no evidence indicating that there has been a material change in the severity of the Veteran's disabilities since she was last examined.  The Board finds the examination reports to be thorough and adequate upon which to base a decision with regard to these claims.

Given these facts, it appears that all available records have been obtained.  There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claims.  38 U.S.C.A. § 5103A(a)(2).

II.  Analysis

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  

When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  

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).

The Veteran's entire history is reviewed when making disability evaluations.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1.  Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012).

For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment.  If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012).

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

The Veteran is competent to testify on factual matters of which she has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  She is also competent to report symptoms of back pain and neck pain, and paresthesia.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  The Veteran is competent to describe her symptoms and their effects on daily activities.

The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes.


Rating Criteria

Spinal disabilities are primarily evaluated under a general rating formula.  

With regard to the lumbosacral spine, under the formula, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  Higher evaluations are assigned for unfavorable ankylosis of the entire spine, or the entire thoracolumbar spine, which are not relevant to the Veteran's claim.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013).  

With regard to the cervical spine, under the formula, a 10 percent evaluation is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent evaluation is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is limited to 170 degrees or less; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 30 percent evaluation is assigned for favorable ankylosis of the entire cervical spine; or, forward flexion of the cervical spine limited to 15 degrees or less.  A 40 percent evaluation is assigned for unfavorable ankylosis of the entire cervical spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2013). 

Alternatively, with regard to either the lumbosacral spine or cervical spine, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the basis of incapacitating episodes over the past 12 months, or under the general rating formula (which provides the criteria for rating orthopedic disability, and authorizes separate evaluations of its chronic orthopedic and neurologic manifestations), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months.  A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months.  A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months.  A maximum, 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  

The notes following revised Diagnostic Code 5243 define an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

"Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.

The notes following Diagnostic Code 5243 further provide that, when evaluating on the basis of chronic manifestations, VA should evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes; and evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes.

Where intervertebral disc syndrome is present in more than one spinal segment, and provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurological manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment.

In general, the rating criteria take into account pain and other symptoms.  In the case of spine disabilities, pain is often the primary factor limiting motion and is almost always present when there is muscle spasm.  Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurological sections of the rating schedule.  Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51,454 (Aug. 27, 2003) (See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243).

With regard to neurological manifestations, the term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.

Regarding the lower extremities, complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  38 C.F.R. § 4.124a, Diagnostic Code 8520.

A 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve of the lower extremity.  A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity.  A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity.  A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity.  An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity.  38 C.F.R. § 4.124a, Diagnostic Code 8520.

Regarding the upper extremities, complete paralysis of the middle radicular nerve group is indicated where the adduction, abduction, and rotation of arm, flexion of elbow, and extension of wrist are lost or severely affected.  38 C.F.R. § 4.124a, Diagnostic Code 8511.

A 20 percent evaluation is warranted for mild incomplete paralysis of the middle radicular nerve group of the either upper extremity.  A 30 percent evaluation is warranted for moderate incomplete paralysis of the middle radicular nerve group of the minor upper extremity, and a 40 percent evaluation is warranted for moderate incomplete paralysis of the middle radicular nerve group of the major upper extremity.  A 40 percent evaluation is warranted for severe incomplete paralysis of the middle radicular nerve group of the minor upper extremity, and a 50 percent evaluation is warranted for severe incomplete paralysis of the middle radicular nerve group of the major upper extremity.  A 60 percent evaluation is warranted for complete paralysis of the middle radicular nerve group of the minor upper extremity, and a 70 percent evaluation is warranted for complete paralysis of the middle radicular nerve group of the major upper extremity.  38 C.F.R. § 4.124a, Diagnostic Code 8511.

A.  Arthritis of the Lumbosacral Spine

Service connection has been established for arthritis of the lumbosacral spine.  The RO has evaluated the Veteran's disability under Diagnostic Code 5010-5242 as initially 10 percent disabling from December 5, 2007, to May 22, 2013, and as 20 percent disabling from May 23, 2013, based on painful or limited motion of the lumbosacral spine; and under Diagnostic Code 8520 as 20 percent disabling from May 23, 2013, for radiculopathy of the left lower extremity, and as 10 percent disabling from May 23, 2013, for radiculopathy of the right lower extremity.   A hyphenated diagnostic code generally reflects a rating by analogy (see 38 C.F.R. §§ 4.20 and 4.27).

Historically, the Veteran injured her low back in 1992 during her Army Reserves service while digging fox holes.  At the time she felt a sudden pain across her low back, and was taken to the hospital and given medications.  Since then, she has reported intermittent pain in the low back; and gradually increasing back pain with radiation to both legs.

VA records show treatment for chronic low back pain in 2007.  MRI scans of the lumbar spine conducted in January 2008 reveal minimal degenerative changes without stenosis.  In March 2008, the Veteran reported radiating pain down to her feet, with no paresthesias.

During a February 2008 VA examination, the Veteran reported radiating pain to both legs.  While she did not report any incapacitating episodes during the past twelve months and was not on bed rest, the Veteran reportedly was "on quarters" two to three times with meals in her room and very little activity.  She also reported that her back pain limited her walking to one-quarter mile.

Examination of the thoracolumbar spine in February 2008 revealed no deformity.  Straight leg raising was negative.  The examiner noted mild tenderness of bilateral lumbar paraspinals.  There was no spasm.  All lower extremity deep tendon reflexes were 2+, and Babinski was negative.  Sensory testing was normal in lower extremities, and strength testing was 5/5.  Range of motion of the lumbosacral spine was to 90 degrees on flexion, with pain at 70 degrees; to 20 degrees on extension, with pain at 15 degrees; to 25 degrees on lateral bending to the left and to the right, with pain at 25 degrees; and to 30 degrees on rotation to the left and to the right, with pain at 30 degrees.  There was 10 degrees less flexion after repetition due to fatigue.  No additional changes in range of motion were noted due to pain, fatigue, weakness, lack of endurance, or incoordination.  MRI scans of the lumbar spine revealed minimal degenerative changes without stenosis.  The diagnosis was arthritis of the lumbosacral spine.  There were no objective findings of radiculopathy. 

The Veteran began physical therapy in March 2008.  Records show that she continued to have chronic low back pain in June 2009, and underwent injections for pain management in August 2009; and underwent a left L3-L4-L5 medial branch nerve block in November 2009.  Records show that she continued to have low back pain in June 2010, and that it was controlled with medications.  Her low back pain was exacerbated in December 2010, and the Veteran was treated in the Emergency Room and received a steroid injection.  She underwent additional nerve block procedures in March and April 2011, and was treated for a possible soft tissue lumbar infection in April 2011.  In June 2011, the Veteran reported that her low back pain radiated down both legs to her ankles.  She was again treated in the Emergency Room for exacerbations of low back pain in July 2011 and in October 2011, and received steroid injections.

The report of an October 2011 VA (contract) examination reflects no neurological deficits of the lower extremities.  Motor function was within normal limits; sensory examination was intact.  Reflexes were 2+ bilaterally.  Peripheral nerve involvement was not evident during examination.  Examination of the thoracolumbar spine revealed no evidence of radiating pain on movement.  Muscle spasm was absent.  There was lumbar tenderness.  Spinal contour was not preserved due to tenderness.  There was no guarding of movement.  Examination did not reveal any weakness.  Muscle tone was normal.  Straight leg raising was negative.  There was no atrophy present in the limbs, and no ankylosis of the thoracolumbar spine.  Range of motion of the thoracolumbar spine was to 90 degrees on flexion; to 30 degrees on extension; to 30 degrees on lateral bending to the left and to the right; and to 30 degrees on rotation to the left and to the right.  The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.

X-rays taken of the lumbar spine in October 2011 revealed trace scoliosis, which appeared to be positional rather than true scoliosis; decreased disc height at L2-L3; questionable developing osteophyte at L4; negative anterior subluxation; and negative compression deformity.  The diagnosis was degenerative arthritis of the lumbar spine.  Subjective factors included pain, stiffness, numbness, paresthesia, and weakness in legs.  Objective factors included tenderness of lumbar region with pain at rest, and X-ray findings of degenerative arthritis changes.

The Veteran underwent another VA (contract) examination in April 2012.  Range of motion of the thoracolumbar spine was to 80 degrees on flexion; to 30 degrees on extension; to 30 degrees on lateral bending to the left and to the right; and to 30 degrees on rotation to the left and to the right.  Pain was noted throughout the ranges of motion, and the Veteran was unable to perform repetitive testing due to pain.  The examiner noted additional functional loss due to pain on movement, as well as tenderness to palpation.  There was also guarding or muscle spasm present, without resulting in abnormal gait or spinal contour.  Muscle strength testing, reflex examination, and sensory examination were normal.  There were no signs or symptoms due to radiculopathy, and no other neurologic abnormalities were found.  The examiner found that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine.

Social Security records, dated in August 2012, show that the Veteran has severe impairments due to disorders of the spine and other disabilities.

The Veteran was again treated in the Emergency Room for exacerbating low back pain, and received a steroid injection in October 2012.

Records show that the Veteran again reported radiating pain down both legs on October 17, 2012.  Neurological evaluation at that time was intact.  Her gait was mildly antalgic.  Deep tendon reflexes were intact.  There were no focal neurological deficits, and no loss of sensation.  There was tenderness to palpation of the lumbar musculature.  Diagnostic tests showed no herniated disc, spinal stenosis, or neuroforaminal narrowing; mild facet arthropathy was noted at levels of L4/L5 and L5/S1.  Diagnoses included chronic low back pain with radiculopathy symptoms.

The report of a May 2013 VA contract examination shows diagnoses of osteoarthritis of the lumbar spine, and discogenic disease lumbar spine with bilateral intervertebral disc syndrome of sciatic nerves.  The Veteran reported flare-ups; and reported taking prescribed muscle relaxers three times daily, which took "the edge off" and made her tired.  Range of motion of the thoracolumbar spine was to 60 degrees on flexion; to 10 degrees on extension; to 20 degrees on lateral bending to the right, and to 15 degrees on lateral bending to the left; to 15 degrees on rotation to the right, and to 10 degrees on rotation to the left.  Pain was noted throughout the ranges of motion, and the Veteran was unable to perform repetitive testing due to pain.

The May 2013 examiner also noted additional functional loss due to pain on movement, and less movement than normal.  There was also tenderness to palpation, and guarding or muscle spasm present, without resulting in abnormal gait or spinal contour.  Muscle strength testing was normal, and there was no atrophy.  Deep tendon reflexes were hypoactive 1+, and sensory examination was decreased on the left.  Straight leg raising was positive bilaterally.  The examiner noted mild paresthesias and numbness of the right lower extremity, and moderate paresthesias and numbness of the left lower extremity.  The examiner identified sciatic nerve root involvement of L4-L5-S1-S2-S3.  Her gait was noted as antalgic, due to the lumbar spine.  Contributing factors included pain, weakness, fatigability, and/or incoordination; but no additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time.

For the Period from December 5, 2007, to October 16, 2012

In this case, during the applicable period, the evidence shows that the Veteran could flex her thoracolumbar spine beyond 60 degrees.  Painful motion, muscle spasm, and localized tenderness were noted; and there was no ankylosis of the lumbar spine. The combined range of motion of the thoracolumbar spine was greater than 120 degrees but not greater than 235 degrees.  There were no findings of scoliosis, reversed lordosis, or abnormal kyphosis.  Her disability, thus, does not meet the criteria for an initial disability rating in excess of 10 percent under the general rating formula.  38 C.F.R. §§ 4.7, 4.21.

There is no record of doctor-prescribed bed rest.  The evidence, therefore, does not show incapacitating episodes during the applicable period.  Hence, there is no basis for a disability evaluation in excess of 10 percent for the Veteran's arthritis of the lumbosacral spine.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013).

Thus, the weight of the evidence is against the grant of an initial disability rating in excess of 10 percent, based on orthopedic findings.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2013).

In addition, there was no objective evidence of any sensory deficits in the lower extremities during the applicable period.  Examiners then found the Veteran's gait to be normal, and sensory and motor testing revealed no significant neurological deficits.

The evidence is against an initial disability rating in excess of 10 percent during the applicable period, as the Veteran's complaints of pain and dysfunction are not supported by adequate pathology.  Again, the objective clinical findings consistently fail to show that her disability meets the criteria for a higher evaluation.  Hence, the Board must conclude that those findings outweigh her lay assertions regarding severity.  

For the Period from October 17, 2012

During the applicable period, the evidence shows that the Veteran could flex her thoracolumbar spine beyond 30 degrees but not greater than 60 degrees.  Painful motion and muscle spasm also were noted, and the Veteran's gait was described as antalgic during VA treatment on October 17, 2012.  Given this evidence, the Veteran's disability, in essence, meets the criteria for a 20 percent disability rating under the general rating formula.  38 C.F.R. §§ 4.7, 4.21.  Hence, the RO's award of a 20 percent disability rating for arthritis of the lumbosacral spine should be effective from the date of VA treatment on October 17, 2012.

The overall evidence does not reflect that forward flexion of the thoracolumbar spine was limited to 30 degrees or less at any time.  Higher evaluations may be assigned for ankylosis, but the Veteran retains lower back motion, and thus does not have ankylosis.  She, therefore, does not meet the criteria for a disability rating in excess of 20 percent under the general rating formula at any time.  38 C.F.R. §§ 4.7, 4.21.

Nor is there evidence of doctor-prescribed bed rest or incapacitating episodes having a total duration of at least four weeks during the past 12 months to warrant higher disability ratings.
 
In this case, the Veteran also described some sensory deficit in both lower extremities.  The Board finds the Veteran's statements to be credible.

As shown above, prior to October 17, 2012, there have been no reports of loss of reflexes or muscle atrophy.  No examiner has found significant neurological deficits.  While the Veteran, at times, has reported radiating pain down her legs, the overall evidence is insufficient to warrant a compensable disability rating for neurological deficits prior to October 17, 2012.

As of the VA treatment on October 17, 2012, the physician diagnosed chronic low back pain with radiculopathy symptoms.  Given the Veteran's credible statements of radiating pain from her back and down both legs, and the subsequent identification of sciatic nerve root involvement by the May 2013 examination, and resolving doubt in favor of the Veteran, the Board finds that the separate 10 percent disability rating for mild incomplete paralysis of the sciatic nerve of the right lower extremity and the separate 20 percent disability rating for moderate incomplete paralysis of the sciatic nerve of the left lower extremity, which have been awarded by the RO, should be effective from the date of VA treatment on October 17, 2012.  38 C.F.R. §§ 4.123, 4.124 (2013).  There is no indication that incomplete paralysis of the sciatic nerve of the right lower extremity is more than mild, or that incomplete paralysis of the sciatic nerve of the left lower extremity is more than moderate at any time from October 17, 2012, to warrant higher disability ratings.  While the Veteran is competent to describe radiating pain down both legs, the objective evidence on neurological testing weighs against the Veteran's lay reports as to the severity of her symptoms.  Here, as described above, staged rating is applicable.
 
Hence, for the period from October 17, 2012, the Board finds that the evidence is against a disability rating in excess of 20 percent for arthritis of the lumbosacral spine based on orthopedic findings; a separate disability evaluation in excess of 10 percent for associated mild, incomplete paralysis of the sciatic nerve of the right lower extremity; and a separate disability evaluation in excess of 20 percent for associated moderate, incomplete paralysis of the sciatic nerve of the left lower extremity.

B.  Degenerative Disc Disease of the Cervical Spine

Service connection has been established for degenerative disc disease of the cervical spine.  The RO has evaluated the Veteran's disability under Diagnostic Code 5242 as initially 10 percent disabling based on painful or limited motion of the cervical spine; and under Diagnostic Code 8511, as 20 percent disabling from May 23, 2013, based on radiculopathy of the left upper extremity.  

Historically, the Veteran reported having neck pain in early to mid-1990's during her Army Reserves service, while digging fox holes with lots of heavy lifting; and reported having increased neck pain in Kosovo in 2006 when she carried duffle bags and heavy packs.  She continued having flare-ups of neck pain after her discharge from active service.  

VA records show treatment for neck pain in 2007.  Cervical spondylosis was noted in January 2008.  MRI scans of the cervical spine conducted at that time reveal mild degenerative changes without stenosis.  Range of motion was within normal limits.  

During a February 2008 VA examination, the Veteran reported cervical pain with flare-ups; and episodes of sharp radiating pain to her left arm.  On examination, sensory testing and strength testing of upper extremities were normal.  Range of motion of the cervical spine was to 45 degrees, with pain at 45 degrees; to 45 degrees on extension; to 40 degrees on lateral bending to the right, with pain at 40 degrees; to 45 degrees on lateral bending to the left; to 75 degrees on rotation to the right and to the left, with pain at 75 degrees.  The examiner found no strength deficits; and indicated that there was no change in range of motion from pain, fatigue, weakness, lack of endurance, or incoordination.  The diagnosis was mild degenerative disc disease of the cervical spine.  There were no objective findings of radiculopathy.

VA records show that the Veteran began physical therapy in March 2008.  In August 2008, the Veteran complained of chronic neck pain.  She denied any recent injury, and denied radiculopathy.  Clinical evaluation revealed full range of motion of the neck in August 2008 and in March 2009.  Records show that she continued to have neck pain in June 2009, and took multiple medications.  In June 2010, the Veteran was diagnosed with cervicalgia with radiculopathy and mild degenerative disc disease at multiple levels.

The report of an October 2011 VA (contract) examination reflects no neurological deficits of the upper extremities.  Motor function was within normal limits; sensory examination was intact.  Reflexes were 2+ bilaterally.  The upper extremities show no signs of pathologic reflexes.  Examination reveals normal cutaneous reflexes.  There are no signs of cervical intervertebral disc syndrome with chronic and permanent nerve root involvement.  Examination of the cervical spine revealed no evidence of radiating pain on movement.  There is no evidence of muscle spasm, guarding, weakness, loss of tone, or atrophy of limbs.  There is cervical tenderness.  There is no ankylosis.  Range of motion of the cervical spine was to 45 degrees on flexion; to 45 degrees on extension; to 45 degrees on lateral bending to the right, with pain at 40 degrees; to 45 degrees on lateral bending to the left, with pain at 30 degrees; and to 80 degrees on rotation to the right and to the left.  The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.

X-rays taken of the cervical spine in October 2011 revealed mild stress-induced changes at the inferior aspect C5, which may represent developing tiny osteophyte.  The diagnosis was degenerative arthritis of the cervical spine.  Subjective factors included pain, stiffness, spasm, weakness, and paresthesia.  Objective factors included tenderness of paracervical and pain with range of motion, and X-ray findings of degenerative arthritis changes.

The Veteran underwent another VA (contract) examination in April 2012.  Range of motion of the cervical spine was to 45 degrees on flexion; to 45 degrees on extension; to 45 degrees on lateral bending to the left and to the right; and to 45 degrees on rotation to the left and to the right.  Pain was noted throughout the ranges of motion, and the Veteran was unable to perform repetitive testing due to pain.  The examiner noted additional functional loss due to pain on movement, as well as tenderness to palpation.  Muscle strength testing, reflex examination, and sensory examination were normal.  There were no signs or symptoms due to radiculopathy, and no other neurologic abnormalities were found.  The examiner found that the Veteran did not have intervertebral disc syndrome of the cervical spine.

The report of a May 2013 VA (contract) examination shows diagnoses of osteoarthritis of the cervical spine with degenerative disc disease, and cervical discogenic disease with left intervertebral disc syndrome radial nerve.  The Veteran denied flare-ups.  Range of motion of the cervical spine was to 45 degrees on flexion, without pain; to 45 degrees on extension, without pain; to 45 degrees on lateral bending to the right, with pain at 25 degrees; to 30 degrees on lateral bending to the left, with pain at 20 degrees; to 80 degrees on rotation to the right, with pain at 60 degrees; and to 35 degrees on rotation to the left, with pain at 25 degrees.  On repetitive testing, rotation to the left was to 65 degrees.

The May 2013 examiner also noted additional functional loss due to pain on movement, and less movement than normal.  There was also tenderness to palpation, and guarding or muscle spasm present, without resulting in abnormal gait or spinal contour.  Muscle strength testing was normal, and there was no atrophy.  Deep tendon reflexes were all normal 2+, and sensory examination was decreased on the left.  The examiner also noted decreased pin prick and vibratory sense.  The examiner identified middle radicular nerve root involvement of C7.  The severity of radiculopathy was mild on the left side; the right side was not affected.  There were no incapacitating episodes due to intervertebral disc syndrome of the cervical spine over the past twelve months.  No other neurological abnormalities related to the cervical spine were found.

In this case, the overall evidence shows that the Veteran could flex her cervical spine beyond 30 degrees; and that the combined range of motion of the cervical spine is greater than 170 degrees.  Painful motion is noted, and there is additional functional loss due to pain on repetitive motion.  There is no ankylosis of the cervical spine.  Nor has there been any incapacitating episodes.  Muscle spasm or guarding severe enough to result in abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis is not demonstrated.  Hence, the evidence is against the award of an initial disability rating in excess of 10 percent for degenerative disc disease of the cervical spine at any time, based on orthopedic findings.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2013).

In this case, the Veteran also described some sensory deficit in both upper extremities.  The Board finds the Veteran's statements to be credible.  For rating purposes, a distinction is made between major (dominant) and minor extremities. 

Prior to the May 23, 2013 VA examination, there have been no reports of loss of reflexes or muscle atrophy.  No examiner has found significant neurological deficits.  While the Veteran, at times, has reported sharp radiating pain at times, the overall evidence is insufficient to warrant a compensable disability rating for neurological deficits affecting the upper extremities prior to May 23, 2013.

As of the May 23, 2013 VA treatment, the examiner identified middle radicular nerve root involvement of C7, which affects the left upper extremity.  The severity of radiculopathy was described as mild; the right upper extremity is not affected.  The RO correctly assigned a separate 20 percent disability rating for mild incomplete paralysis of the middle radicular nerve group of the left upper extremity, effective May 23, 2013.  38 C.F.R. §§ 4.123, 4.124 (2013).

Here, there is no indication that a separate compensable disability rating is warranted for radiculopathy of the right upper extremity; and no indication that incomplete paralysis of the middle radicular nerve group of the left upper extremity is more than mild at any time from May 23, 2013, to warrant a higher disability rating.  While the Veteran is competent to describe radiating pain down both arms, the objective evidence on neurological testing weighs against the Veteran's lay reports as to the severity of her symptoms.  Here, as described above, staged rating is applicable.

Hence, the Board finds that the evidence is against a compensable disability rating for radiculopathy of the right upper extremity at any time; and, for the period from May 23, 2013, is against a disability evaluation in excess of 20 percent for associated mild, incomplete paralysis of the middle radicular nerve group of the left upper extremity.

C.  Extraschedular Consideration

An extraschedular evaluation is for consideration where service-connected disabilities present an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  Floyd v. Brown, 9 Vet. App. 88, 94 (1996).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disabilities.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. 

The Board finds that the schedular evaluations assigned for the Veteran's service-connected arthritis of the lumbosacral spine and degenerative disc disease of the cervical spine are adequate in this case.  The Veteran's spinal disabilities, and the severity thereof, which are manifested by symptoms of limited and painful motion and neurological deficits, are contemplated by the schedular criteria.  Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

For the period from December 5, 2007, to October 16, 2012, an initial disability evaluation in excess of 10 percent for arthritis of the lumbosacral spine is denied.

For the period from October 17, 2012, a disability rating of no more than 20 percent for arthritis of the lumbosacral spine is allowed, subject to the regulations governing the award of monetary benefits.

For the period from May 23, 2013, a disability rating in excess of 20 percent for arthritis of the lumbosacral spine is denied.

For the period from October 17, 2012, a separate disability rating of no more than 10 percent for associated mild, incomplete paralysis of the sciatic nerve of the right lower extremity is allowed, subject to the regulations governing the award of monetary benefits.

For the period from May 23, 2013, a separate disability rating in excess of 10 percent for associated mild, incomplete paralysis of the sciatic nerve of the right lower extremity is denied.

For the period from October 17, 2012, a separate disability rating of no more than 20 percent for associated mild, incomplete paralysis of the sciatic nerve of the left lower extremity is allowed, subject to the regulations governing the award of monetary benefits.

For the period from May 23, 2013, a separate disability rating in excess of 20 percent for associated mild, incomplete paralysis of the sciatic nerve of the left lower extremity is denied.

An initial disability evaluation in excess of 10 percent for degenerative disc disease of the cervical spine is denied.

For the period from May 23, 2013, a separate disability rating in excess of 20 percent for associated mild, incomplete paralysis of the middle radicular nerve group of the left upper extremity is denied.


REMAND

VA is required to seek a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current disability; establishes that the Veteran suffered an event, injury or disease in service; and indicates that the current disability may be associated with the in-service event, injury or disease.  38 C.F.R. § 3.159(c)(4) (2012).  

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 

Foot Disability Manifested by Pain with Swelling 

The Veteran contends that service connection for a foot disability manifested by pain with swelling is warranted on the basis that she was treated for plantar fasciitis in active service in 2006, and that she continues to have recurring episodes of plantar fasciitis in both feet.  She is competent to describe her symptoms.

Service treatment records show that the Veteran was treated for recurring foot pain with swelling in August 2006 and at various times in December 2006.  There is an in-service assessment of plantar fasciitis.

X-rays taken of the Veteran's feet post-service in February 2008 show no significant abnormality; and a VA examiner found no pathology on examination at the time to render a diagnosis.

Records reflect that, in September 2008, prosthetics were ordered for the Veteran for "functional hallux limitus," which was causing plantar fasciitis due to an excessive abducted pronated gait pattern.  In June 2011, the Veteran again reported pain in both feet.  Assessments in August 2011 were plantar fasciitis, and flexor tendinitis of left foot.  Heel arthralgia was noted bilaterally in September 2011.  

In October 2011, a VA examiner found no pathology to render a diagnosis.  X-rays were essentially negative.  Another VA examiner found no foot condition, and an essentially negative examination in April 2012.

The Board notes that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability is filed or during the pendency of that claim, even though the disability resolves prior to adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007). 

Under these circumstances, the Board finds that an addendum from either the October 2011 examiner or the April 2012 examiner (or from a suitable substitute) is needed to determine whether the Veteran has or had current plantar fasciitis, or another foot disability, that either had its onset during service or is related to her active service. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4) (2013). 

Disability Manifested by Enlarged Lymph Nodes 

The Veteran contends that service connection for a disability manifested by enlarged lymph nodes is warranted on the basis that the enlarged lymph nodes were diagnosed shortly after the Veteran's discharge from active service.

VA records include a diagnosis of mildly prominent bilateral axillary lymph nodes in January 2008.  The report of a February 2008 VA examination includes a diagnosis of lymphadenopthy in upper neck bilaterally, of uncertain etiology.  There are also findings in March 2008 of a low marrow signal on T1 weighted images, and of multiple large lymph nodes in the Veteran's neck.  The physician at the time raised the possibility of a lymphoproliferative or myeloproliferative disorder, or chronic inflammatory disorder.

MRI scans of the Veteran's cervical spine in September 2008 revealed no evidence of lymphadenopathy.

Lymphadenopathy of neck was again noted in July 2011 and in May 2013.

Although the Veteran's service treatment records are absent complaints or treatment for enlarged lymph nodes, she is a credible and reliable historian with regard to the observable symptoms she experienced both in service and after service, to include experiencing enlarged lymph nodes since her discharge from active service.  The remaining question, therefore, is whether the evidence indicates that there may be an association between her current diagnosis and service.  See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

While further delay of this case is regrettable, due process considerations require such action.  Accordingly, the case is REMANDED for the following action:

1.  The October 2011 VA examination report and/or the May 2012 VA examination report should be returned to the examiner (or, if those examiners are unavailable, a suitable substitute) for an addendum expressing an opinion as to:  

Whether it is at least as likely as not (50 percent probability or more) that the Veteran has or had current plantar fasciitis, or another foot disability, that either had its onset in active service; or is the result of disease or injury incurred in or aggravated during active service.

The examiner should provide a rationale for opinions offered. The examiner should reconcile any opinion with the service treatment records; any additional medical treatment records associated with the claims file; and with the Veteran's credible statements.  

If the examiner determines that an opinion cannot be made without resort to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed disorder, or whether the actual cause is due to multiple potential causes. In other words, simply stating that an opinion cannot be made without resort to mere speculation is not acceptable without a detailed explanation as to why this is so.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  

The Veteran's claims file, to include a copy of this REMAND, must be made available to the examiner, and the examination report should note review of the file.  

2.   Schedule the Veteran for a VA examination to determine the nature and etiology of her diagnosed lymphadenopathy of neck.  The claims file, and any pertinent records contained in any electronic claims folder, must be reviewed in conjunction with the examination.  All testing deemed necessary must be conducted and results reported in detail.  

Based on the review and physical examination, the examiner is asked to render an opinion as to whether it is at least as likely as not that the Veteran's lymphadenopathy of neck is medically related to her service-specifically, to include the findings of enlarged lymph nodes shortly after the Veteran's discharge from active service; and the Veteran's credible reports of enlarged lymph nodes then, and since then. 

An explanation of the underlying reasons for any opinions offered must be included. 

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.  The examiner is also advised that the Veteran is a credible and reliable historian with regard to the observable symptoms she experienced in service and after service, regardless of the lack of documented complaints in the service treatment records.

3.  Thereafter, readjudicate the claims on appeal.  If the benefits sought are not fully granted, furnish the Veteran and her representative a supplemental statement of the case (SSOC), and allow the appropriate response time before the claims file is returned to the Board, if otherwise in order.

No action is required of the Veteran and her representative until they are notified by the RO or AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of her claims.  38 C.F.R. § 3.655 (2013).  The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).




______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs