Citation Nr: 1340501 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-25 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a separate compensable rating for radiculopathy of the left leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with intervertebral disc syndrome (IVDS). 2. Entitlement to an initial rating higher than 10 percent for radiculopathy of the right leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from June 1983 to September 2004. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in San Diego, California. The Veteran testified before the undersigned Veterans Law Judge at an October 2011 hearing. A transcript of that hearing is of record. In a February 2012 decision, the Board denied a rating in excess of 10 percent for degenerative disc disease with facet joint arthritis and spondylosis of the lumbar spine with intervertebral disk syndrome for the period prior to April 4, 2009, a rating in excess of 20 percent for degenerative disc disease with facet joint arthritis and spondylosis of the lumbar spine with intervertebral disk syndrome for the period beginning April 4, 2009 and a rating in excess of 30 percent for gastroesophageal reflux disease with irritable bowel syndrome. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR) the parties agreed to vacate the February 2012 decision and remand the case to the Board for additional development on the basis that the Board failed to adjudicate the issue of entitlement to a rating higher than 10 percent for radiculopathy of the right leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS and entitlement to a separate rating for radiculopathy of the left leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS. The JMR was incorporated by reference in a Court order dated in December 2012. This case was remanded by the Board in September 2013 for further development. This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. Radiculopathy of the left leg is not manifested by mild incomplete paralysis of the sciatic nerve. 2. Radiculopathy of the right leg is manifested by no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a separate compensable rating for left leg radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West and Supp. 2013); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5239-5237, 4.124a, Diagnostic Code 8520 (2013). 2. The criteria for a rating higher than 10 percent for right leg radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5239-5237, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in February 2007 and February 2009, VA advised the Veteran of the information and evidence needed to substantiate the claim. The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the October 2013 supplemental statement of the case. VA has also satisfied its duty to assist. The Veteran has been afforded VA compensation examinations, and the claims folder contains service treatment records, VA medical records and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. The Veteran's representative has asserted that the October 2013 examination report is not on file. The Board located the examination in the Virtual VA folder, and as such, additional development is not needed to obtain a copy of that exam. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) ; 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Separate Ratings The Veteran is service connected for degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS. Under the General Rating Formula for Diseases and Injuries of the Spine, separate ratings can be provided for neurological disorders associated with disorders of the spine under 38 C.F.R. § 4.124a. The Veteran appeals the denial of a separate compensable rating for radiculopathy of the left leg. For claims in which symptoms of a neurologic defect have been claimed or found, 38 C.F.R. § 4.120 dictates that neurological conditions and convulsive disorders are to be rated in proportion to the impairment of motor, sensory or mental function. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, or severe incomplete paralysis, or complete paralysis 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 only sensory, the rating should be for the mild, or at most, the moderate degree. 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, 4.124. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The most probative evidence of record is devoid of a showing that a separate compensable rating for radiculopathy of the left leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS is warranted. To that end, examination in May 2004 revealed no peripheral nerve involvement. There was normal lower extremity sensory function. Reflexes were 1+ in the knees and ankles, and lower extremities motor function was normal. In June 2002, the Veteran presented with tingling peristhesias in stocking glove distribution. A provisional diagnosis of peristhesias was rendered. A private examination in July 2003 noted tingling of the extremity for the last three years. Bulk tone and power were full. Deep tendon reflexes were 1+ at the knees but absent at the ankles. There was a slight gradient in sensation to pm from the toes to the mid dorsum of the foot. Sensation was intact to touch. According to the examiner, the Veteran's symptoms were most likely consistent with a mild generalized peripheral neuropathy. During the March 2007 VA examination, that Veteran reported having intermittent pain occurring three times a day and lasting for two hours at a time without radiation. There was no evidence of intervertebral disc syndrome with chronic and permanent nerve root involvement. He had good tone bilaterally and strength was 5/5 in all extremities. Sensory was intact and equal bilaterally to pain and touch, and coordination was within normal limits. Reflexes were 1+ in the knees and ankles bilaterally. The Veteran reported radiation of pain from his back to his legs during the April 2009 VA examination. He denied numbness. There were signs of lumbar IVDS but no lumbosacral motor weakness. The left lower extremity reflexes revealed knee and ankle jerk were absent. The most likely peripheral nerve was the sciatic nerve. The October 2013 VA examination revealed normal muscle strength testing. Deep tendon reflexes were hypoactive for the knees and ankles. There was no muscle atrophy. Sensation to light touch was normal. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He also did not have any other neurologic abnormalities or findings related to the thoracolumbar spine. An impression was given of normal electrodiagnostic study, no EMG evidence of a right L2-S2 motor radiculopathy, no NCS evidence of a right sural sensory neuropathy, and no NCS evidence of a right peroneal sensory or motor neuropathy. While the evidence demonstrates complaints of tingling of the extremity and radiation of pain, it does not demonstrate significant left lower extremity neurological impairment resulting therefrom. In this regard, VA examinations revealed essentially normal neurological findings for the left lower extremity. The Board is mindful of the Veteran's contentions. The Veteran is competent to report symptoms, such as tingling and pain, the objective findings however regarding strength, sensation, and even reflexes are largely normal for the left leg. The Board concludes that the findings of skilled professionals are more probative than the Veteran's lay statements and a separate compensable evaluation for left lower extremity neurological abnormalities associated with the lumbar spine is not warranted. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In reaching this determination, the Board has considered the guidance established in section 4.120, 4.123 and 4.124. However, when rated by analogy, a separate compensable evaluation is not warranted. The Board has also considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Given that the Veteran appeals the initial evaluation assigned, the severity of his disability is to be considered during the entire period from the initial assignment of the disability rating to the present. Fenderson. One issue before the Board is entitlement to an evaluation higher than 10 percent for radiculopathy of the right leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS. The Veteran disability is rated under Diagnostic Code 8520. Under Diagnostic Code 8520, incomplete paralysis of the sciatic nerve warrants a 10 percent evaluation when mild, and a 20 percent evaluation when moderate. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation where 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. 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.124a, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type 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, at most, the moderate degree. The ratings for peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. As noted earlier, examination in May 2004 revealed no peripheral nerve involvement. There was normal lower extremity sensory function. Reflexes were 1+ in the knees and ankles, and lower extremities motor function was normal. The Veteran presented with tingling peristhesias in stocking glove distribution in June 2003. A provisional diagnosis of peristhesias was rendered. A private examination in July 2003 noted tingling of the extremity for the last three years. Bulk tone and power were full. Deep tendon reflexes were 1+ at the knees but absent at the ankles. There was a slight gradient in sensation to pm from the toes to the mid dorsum of the foot. Sensation was intact to touch. According to the examiner, the Veteran's symptoms were most likely consistent with a mild generalized peripheral neuropathy. During the March 2007 VA examination, that Veteran reported having intermittent pain occurring three times a day and lasting for two hours at a time without radiation. There was no evidence of intervertebral disc syndrome with chronic and permanent nerve root involvement. He had good tone bilaterally and strength was 5/5 in all extremities. Sensory was intact and equal bilaterally to pain and touch, and coordination was within normal limits. Reflexes were 1+ in the knees and ankles bilaterally. The Veteran reported radiation of pain from his back to his legs during the April 2009 VA examination. He denied numbness. There were signs of lumbar IVDS but no lumbosacral motor weakness. There was L3 sensory deficit of the right anterior lower thigh and right inner knee, L4 sensory deficit of the right lateral thigh right front leg and right medial leg, L5 sensory deficit of the right lateral leg right dorsal foot and right lateral foot, and S1 sensory deficit of the right back of the thigh right lateral leg and right lateral foot. The right lower extremity reflexes revealed knee and ankle jerk were absent. The most likely peripheral nerve was the sciatic nerve. The October 2013 VA examination revealed normal muscle strength testing. Deep tendon reflexes were hypoactive for the knees and ankles. There was no muscle atrophy. Sensation to light touch was normal. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He also did not have any other neurologic abnormalities or findings related to the thoracolumbar spine. An impression was given of normal electrodiagnostic study, no EMG evidence of a right L2-S2 motor radiculopathy, no NCS evidence of a right sural sensory neuropathy, and no NCS evidence of a right peroneal sensory or motor neuropathy. The above findings are against a rating higher than 10 percent disabling, as no more than mild impairment is shown by the record. In reaching this determination, the Board has considered the guidance established in section 4.120, 4.123 and 4.124. While neurological findings in April 2009 revealed sensory deficits of the right lower extremity, examinations before and after April 2009 revealed essentially normal findings for the right lower extremity. To that end, in March 2007 sensory was intact and equal bilaterally to pain and touch. When examined in October 2013 sensation to light touch was normal. The Veteran also did not have radicular pain or any other signs or symptoms due to radiculopathy. While the Board finds that the Veteran has presented competent and credible testimony regarding the nature and extent of his radiculopathy of the right leg, neither the lay or medical evidence reflects that the requirements for a higher rating are met, i.e. moderate incomplete paralysis of the sciatic nerve. The Board has afforded greater probative value to the VA examinations than the Veteran's reports of symptomatology. The examinations were conducted by medical professionals with the expertise to comment and opine on the matters at issue. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no other provision upon which to assign a higher rating. Accordingly, the claim is denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). The Board considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) ; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology to include pain and tingling of the lower extremities, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. Finally, there is no evidence that the appellant is unemployable as a result of this service connected disability. Consequently, there is no implicit claim of entitlement to a total disability rating based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER Entitlement to a separate compensable rating for radiculopathy of the left leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS is denied. Entitlement to an initial rating higher than 10 percent for radiculopathy of the right leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs