Citation Nr: 1338930	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  11-06 523	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office 
in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to an initial compensable disability rating (evaluation) for radiculopathy of the right lower extremity.

2.  Entitlement to an initial compensable disability rating for radiculopathy of the left lower extremity.


REPRESENTATION

Appellant represented by:	Arkansas Department of Veterans Affairs


ATTORNEY FOR THE BOARD

L. Buchs, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, had active service from September 1997 to January 1998, and February 2003 to May 2004.

This appeal comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the VA Regional Office (RO) in North Little Rock, Arkansas, which in pertinent part, granted service connection for radiculopathy for both lower extremities, as secondary to a service-connected back disability, with evaluations of 0 (zero) percent each, effective from December 31, 2009.  As the Veteran has disagreed with the initial ratings assigned following the grant of service connection for radiculopathy for bilateral lower extremities, the Board has characterized this issue as one of entitlement to higher initial disability ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board has reviewed the physical claims file and both the Veterans Benefits Management System (VBMS) and "Virtual VA" files so as to insure a total review of the evidence.


FINDING OF FACT

During the entire rating period, the Veteran's radiculopathy manifested as subjective pain and numbness in both lower extremities.


CONCLUSIONS OF LAW

1.  Resolving reasonable doubt in the Veteran's favor, the criteria for an initial 10 percent disability rating, but no higher, for radiculopathy of the right lower extremity are met for the entire initial rating period.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2013).

2.  Resolving reasonable doubt in the Veteran's favor, the criteria for an initial 10 percent disability rating, but no higher, for radiculopathy of the left lower extremity are met for the entire initial rating period.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and to Assist

As provided by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013).

The Veteran's appeal for a compensable initial rating arises from disagreement with the initial evaluation following the grant of service connection for radiculopathy for lower extremities.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson,        21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date).

The Board finds that all necessary development has been accomplished.  VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A.  VA has obtained service records and VA treatment records.  The Veteran has been afforded an adequate VA spine examination in April 2010.  Conclusions reached based on neurological findings and diagnoses given were consistent with the examination report.  Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  For these reasons, no further notice or assistance to the Veteran is required to fulfill VCAA duties.

Disability Rating Laws and Regulations

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Rating Schedule.  38 U.S.C.A. 
§ 1155; 38 C.F.R. §§ 4.1, 4.2 (2013).  In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete history of a veteran's disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  

Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27 (2013).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor.  38 C.F.R. § 4.3. 

Diagnostic Codes 8520 - 8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia.  Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve.  Neuritis and neuralgia are rated as incomplete paralysis.  Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve.  38 C.F.R. § 4.124a.  A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy.  An 80 percent rating is warranted with complete paralysis of the sciatic nerve.  38 C.F.R. § 4.124(a).

In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.

Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.  38 C.F.R. § 4.6 (2013).  Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue.  Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6.

Radiculopathy Initial Rating Analysis

The Veteran's lower extremity radiculopathy was initially rated as noncompensable (i.e., zero percent disabling) under the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8520.  Upon review of the rating schedule, the Board finds no alternative diagnostic code under which it would be more appropriate to evaluate the disabilities.

In personal statements received in February 2010, September 2010, and February 2011, the Veteran reported that he experienced numbness and pain in his legs.  The Veteran stated that he, "can just be standing up or just walking at times and [his] leg will go numb, not both at a time...either on [his] left or right."  He also reported that this disability affects him when he is sitting and in bed.

After review of all the lay and medical evidence, the Board finds that, during the entire initial rating period, the evidence is in equipoise on the question of whether Veteran's radiculopathy manifested to at least mild severity.  The evidence shows that, during the entire initial rating period, the Veteran experienced subjective pain and numbness in both lower extremities, which the Board finds more nearly approximates the schedular rating criteria for a 10 percent rating for each lower extremity under 38 C.F.R. § 4.124a, Diagnostic Code 8520 (10 percent for mild incomplete paralysis of the sciatic nerve).  

In addition to the Veteran's written reports of symptoms during the claim, the evidence also includes an April 2010 VA spine examination report for compensation purposes, which reflects that the Veteran complained of numbness in the left leg and pain in the right leg.  The Veteran reported that he had not missed work, and he had no trouble performing activities of daily living.  The Veteran reported having limits on bending, standing, and prolonged walking.

Upon physical examination in April 2010, the VA examiner found the Veteran's gait was normal.  There was no motor weakness or foot drop demonstrated.  Sensation was normal in both of the Veteran's lower extremities (calves and feet).  Lower extremity reflexes were two plus knees and two plus ankles and symmetrical.  The VA examiner opined that the Veteran did not have clinical findings on the examination and that the Veteran's examination was "virtually normal."

Although there is no clinical evidence of radiculopathy, the VA examiner opined that "radiculopathy does not always equal abnormal clinical findings on examination."  The Veteran reported symptoms of pain and numbness in his legs.  The Board finds that the Veteran is both competent and credible in these statements and histories presented regarding the symptoms of pain and numbness in the lower extremities.  The evidence shows that the criteria of "mild" incomplete paralysis are more nearly approximated for the entire initial rating appeal period.  Resolving reasonable doubt in the Veteran's favor, the Board finds that the schedular rating criteria for a 10 percent under Diagnostic Code 852010 are met. 


The Board finds that the Veteran's radiculopathy, as described, shows no more than a mild manifestation for the entire rating period.  As the evidence shows that the Veteran's radiculopathy is manifested by subjective pain and numbness without any 
objective sensory or motor deficit or muscular weakness/atrophy, the Board finds that the preponderance of the evidence weighs against findings of initial ratings in excess of 10 percent for the period.  38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration

The Board has considered whether referral for an extraschedular evaluation is warranted.  In exceptional cases an extraschedular rating may be provided.             38 C.F.R. § 3.321.  The threshold factor for extraschedular consideration is 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, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for the disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the rating schedule.  The Veteran's manifestations of radiculopathy, pain and numbness, are wholly sensory, which is accounted for under the schedular rating criteria at 38 C.F.R. § 4.124a.  The schedular rating criteria provide ratings based on paralysis, neuritis, and neuralgia (nerve pain).  The schedular criterion of paralysis includes the symptom of numbness.  For these 

reasons, the Board finds that the schedular rating criteria are adequate to rate the Veteran's radiculopathy of the lower extremities, and referral for consideration of extraschedular rating is not necessary.  38 C.F.R. § 3.321(b)(1).  


ORDER

An initial 10 percent disability rating for right lower extremity radiculopathy, but no higher, is granted.

An initial 10 percent disability rating for left lower extremity radiculopathy, but no higher, is granted.



____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs