Citation Nr: 1343521 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 06-27 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a separate rating for a neurological disability of the bilateral lower extremities (to include radiculopathy) secondary to the service-connected degenerative disc disease of the lumbar spine. WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to December 1982, September 1990 to May 1991, and December 2003 to January 2005. He received the Army Commendation Medal. He served in Southwest Asia from November 1990 to January 1991. This matter initially came before the Board of Veterans' Appeals (Board) from an April 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In that decision, a Decision Review Officer (DRO), among other things granted service connection for degenerative disc disease of the lumbar spine and assigned an initial 10 percent disability rating, effective January 10, 2005. In November 2006 and March 2012, the Veteran testified at hearings before a Decision Review Officer (DRO) at the RO and before the Board, respectfully. Transcripts of these hearings have been associated with his claims file. In September 2012, March 2013, and September 2013, the Board remanded the matter for further development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. As previously mentioned in the March and September 2013 Board decisions, in a November 2006 letter, the Veteran raised the issues of entitlement to service connection for a liver disability and a bilateral foot disability other than metatarsalgia (including pes planus). These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT Throughout the period of the appeal, the Veteran's s neurological disabilities of the bilateral lower extremities secondary to the service-connected degenerative disc disease of the lumbar spine have been manifested by no more than mild incomplete paralysis of the sciatic nerve of the bilateral lower extremities. CONCLUSIONS OF LAW 1. The criteria for a separate 10 percent rating, but no higher, for neurological abnormalities of the right lower extremity associated with degenerative changes of the lumbosacral spine have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, 4.124a, Diagnostic Code 8520 (2013). 2. The criteria for a separate 10 percent rating, but no higher, for neurological abnormalities of the left lower extremity associated with degenerative changes of the lumbosacral spine have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 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 appeal for degenerative disc disease of the lumbar spine arises from the Veteran's disagreement with the initial ratings assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim of service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2013) impose the following two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's November 2006 and March 2012 hearings, the DRO and the Board identified the issue on appeal at the time of the respective hearings, asked the Veteran about the symptoms and history and asked him about any treatment received for this disability to ensure that all relevant records were obtained. The Veteran provided testimony as to the symptoms and history of his disability and the treatment received for this disability, and has submitted additional evidence during the course of the appeal. Thus, he has demonstrated actual knowledge of the ability to identify and submit additional relevant evidence. Also, the Board subsequently remanded the issue on appeal to attempt to obtain additional evidence (i.e. VA and private treatment records) suggested by the hearing testimony. The duties imposed by Bryant were thereby met. VA obtained the Veteran's service treatment records, pertinent service personnel records, all of the relevant identified post-service VA treatment records, and some of the relevant identified post-service private medical records. In addition, the Veteran was afforded VA examinations to assess the severity of the Veteran's degenerative disc disease of the lumbar spine and any associated neurological disabilities of the lower extremities. In the September 2013 remand, the Board sought a VA examination to assess the severity of his service-connected lumbar spine disability as well as associated neurological disabilities of the lower extremities. The requested examination provided in September 2013 was in accordance with the remand request and is adequate. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998); and Barr v. Nicholson, 21 Vet. App. 303 (2007). The evidence does not suggest and the Veteran has not alleged that his disabilities have increased in severity since his last VA examinations. A review of the Virtual VA paperless claims processing system shows that VA treatment records through March 2013 are of record. The AMC considered these updated VA treatment records in the May 2013 SSOC. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Legal Criteria A. Increased Ratings, Generally 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 evaluation will be assigned. 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disability. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Criteria for Rating Objective Neurological Abnormalities Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula, any associated objective neurologic abnormalities are evaluated separately under the appropriate Diagnostic Code for the neurologic abnormality. In a decision in September 2013, the Board decided the claim for an initial rating higher than 10 percent from January 10, 2005, for degenerative changes of lumbosacral spine under the General Rating Formula and under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board remanded the claim to adjudicate whether a separate rating was warranted for any neurological abnormalities of the bilateral lower extremities. As the Board has already decided the issues for increase under the General Rating Formula, except for objective neurological abnormalities, and under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the rating criteria other than the criteria for rating a neurological abnormality are not addressed in this decision. Radiating pain or radiculopathy from degenerative changes of lumbosacral spine is associated with sciatica. Under Diagnostic Code 8520, the criterion for a 10 rating for impairment of the sciatic nerve is mild incomplete paralysis. The criterion for a 20 rating is moderate incomplete paralysis. 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, or at most, the moderate degree. 38 C.F.R. § 4.124a III. Analysis VA treatment records documented the Veteran's complaints of back pain. In March 2005, the Veteran reported tightness in his back, but did not have radicular pain. On September 2005 VA examination, the Veteran had complaints primarily of low back pain that radiated into both legs. The pain was worse on the left than on the right side. He had numbness in the left foot on an intermittent basis. He stated that most days he did not have much pain, but had numbness in the left foot. He described this as a burning and numb feeling that was intermittent. The examiner noted that the symptoms that radiated down the left leg tended to radiate in a pore distribution into the lateral 3 toes on the top of his foot. The Veteran did not use any assistive devices for walking with respect to his back. Neurological examination revealed 5/5 strength in both lower extremities and his hip abductors, hip flexors, hip extensors, knee extensors, knee flexors, tibialis anterior, extensor hallucis longus, and gastroc soleus. Light touch was intact from the Li to Si dermatomes and reflex of the knees were symmetric. Reflexes at the ankle were symmetric, bilaterally. There were no long track findings. Pulses were palpable and symmetric in both lower extremities. The examiner reported that the Veteran had what sounded like a herniated disk in his lumbar spine, which produced symptoms primarily in the L4 dermatome. A June 2006 VA treatment record noted the Veteran's sensation of burning. A neurological examination was normal. An August 2006 neurology consult revealed sensory pinprick and vibration were slightly decreased at the toes, bilaterally. The impression was that it was of undetermined etiology and the Veteran was likely pre-diabetic. A September 2006 treatment record noted the Veteran's sensation of burning. A neurological examination was normal. The record noted that an August 2006 CT of the lumbar spine was normal. During his November 2006 DRO hearing, the Veteran reported back pain with sitting, numbness down into the legs and joints, and swelling. Sometimes his feet would go numb. When sitting for a long period of time, he felt a burning sensation in his pelvis bone upon standing. A November 2006 VA rheumatology consult included a diagnosis of peripheral neuropathy. There was no evidence of polyneuropathy on December 2006 electromyography (EMG)/ nerve conduction studies (NCS). There was electrophysiologic evidence of pathology in the S1 nerve root distribution, bilaterally. He was assessed with a history of presenting complaints consistent with sciatica. A March 2007 treatment record noted that in regards to the "tingling sensation" in hands and feet, bilaterally in stocking/glove distribution, there had been no objective evidence of abnormal findings on examination. An April 2007 VA neurology consult showed that there was evidence of pathology in the S1 nerve root distribution, bilaterally. The record noted that a May 2007 MRI of the lumbar spine showed no evidence of herniated nucleus pulposus, spinal stenosis or facet neuropathy. In August 2007, he was seen for complaints of low back pain along with numbness and tingling in the legs for the past two years. On May 2008 VA examination, the Veteran's primary complaint was pain in his back radiating down both legs, dysesthesia, and burning sensation over the same areas as the pain. The examiner noted that the Veteran was evaluated by Neurology and at one point and they felt that peripheral neuropathy may have been related to pre-diabetes or low B12 levels. Further review of the charts, however, indicate that B12 levels obtained from the Memphis VAMC were never below the lower limits of normal and treatment with B12 failed to alter the veteran's symptoms. He denied any bowel or bladder incontinence. Neurological examination was normal. The examiner noted that there were two reports of abnormal nerve conduction studies of the S1 nerve root, which was likely caused by or a result of degenerative disk disease and bulging annulus in this area. The examiner specifically noted that although the MRI did not show nerve impingement, it was not 100 percent sensitive in this regard. The examiner also diagnosed the Veteran with fibromyalgia and stated that the dysesthesias that he experienced, including the pain in his hands and feet, was commonly seen in the patient's with this condition and were therefore likely to be related to that problem. The August 2008 VA examination indicated that the prior diagnosis of fibromyalgia was inconsistent with the current examination; however, the examiner suggested that the Veteran may have intermittent radiculopathy. The examiner opined that it was as likely as not that the Veteran's complaints of intermittent numbness were related to S1 radiculopathy. Since the Veteran had no numbness at the time of the examination, the examiner was unable to examine this and could make a comment based on the history of lateral foot numbness. The examiner stated that it was also just as likely as it was not that this could be related somehow to the Veteran's history of peripheral neuropathy which would be consistent with the Veteran's bilateral hand numbness as well. The examiner indicated that providing an opinion on the matter would be outside of his prevue and it would be prudent for him to speculate on this. On January 2012 VA examination, no neurological abnormalities were shown on neurological examination. The examiner answered, checked "No" when asked if the Veteran had radicular pain or any other signs or symptoms due to radiculopathy. The examiner responded the same way in regards to any other neurological abnormalities. The examiner checked "No" when asked if the Veteran's thoracolumbar spine (back) condition impacted his ability to work. During his March 2012 Board hearing, the Veteran essentially restated his prior contentions. On May 2013 VA examination, the examiner reported muscle strength was normal. There was no muscle atrophy. Reflex and sensory examinations were normal. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There were not any other neurologic abnormalities or findings related to the thoracolumbar spine condition. On September 2013 VA examination, the examiner checked, "Yes" when asked if the Veteran had a peripheral nerve condition or peripheral neuropathy. The examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connection condition. The examiner reasoned that all the files in the c-file as well as medical records in CPRS and neurological consults were reviewed. Although these records stated that the Veteran had EMG evidence of S1 radiculopathy, the current clinical examination did not correlate with these findings. The Veteran had non dermatomal or nervous distribution of symptoms. The examiner noted the Veteran's reports that immediately after his service he began to have foot pain and paresthesias. He denied association with back pain and foot numbness. He claimed that numbness was worse with ambulation and located down into the lateral three toes. The symptoms waxed and waned and did not improve. There were no specific injuries. The examiner indicated that the Veteran had symptoms that were attributable to peripheral nerve conditions and reported that the Veteran had mild numbness, paresthesia and/or dysesthesia in the left lower extremity. Muscle strength testing and reflex and sensory examinations of the bilateral lower extremities were normal. The lower extremity nerves (sciatic, external popliteal (common peroneal), musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), posterior tibial, anterior crural (femoral), internal saphenous, obturator, and ilio-inguinal nerves as well as the external cutaneous nerve of the thigh). The examiner found that the Veteran's peripheral nerve condition did not impact his ability to work. On review of the record, a December 2006 EMG/NCS revealed electrophysiologic evidence of pathology in the S1 nerve root distribution, bilaterally and the Veteran was assessed with a history of presenting complaints consistent with sciatica. On May 2008 VA examination, the examiner noted that there were two reports of abnormal nerve conduction studies of the S1 nerve root, which was likely caused by or a result of degenerative disk disease and bulging annulus in this area. While the examiner reported that an MRI did not show nerve impingement, he also added that the MRI was not 100 percent sensitive in this regard. Here, during the course of the appeal, there has been evidence of an objective neurological abnormality by electrodiagnostic testing, which has been associated with complaints related to the S1 nerve root and consistent with sciatica. Although the Veteran's neurological symptoms were not present during each examination, the evidence shows that the Veteran's neurological disability was intermittent in nature. The August 2008 VA examination, the examiner suggested that the Veteran may have intermittent radiculopathy. Additionally, the examiner opined that it was as likely as not that the Veteran's complaints of intermittent numbness were related to S1 radiculopathy. After careful consideration, the Board finds that separate 10 percent ratings for the mild incomplete paralysis of the left lower extremity and right lower extremity are warranted. 38 C.F.R. § 4.124a, DC 8520. In so finding, the Board observes that during the course of the appeal, the Veteran experienced no more than mild symptoms of a neurological disability of the bilateral lower extremities. The evidence shows that the Veteran competently, consistently, and credibly reported intermittent radiating pain, dysesthesia, numbness, tingling, and burning into the bilateral lower extremities. Clinical testing showed that he experienced decreased sensory and pinprick testing in the toes, bilaterally. There have been no objective findings of loss of muscle mass, atrophy, reduced strength or function indicated, or additional sensory disturbance and the Veteran has not alleged such symptoms. As noted, where, as here, the involvement is wholly sensory, the rating should be for the mild incomplete paralysis of the sciatic nerve of the bilateral lower extremities. In this case, as only sensory impairment was noted on the neurological examinations during this period, the Board finds that an initial rating in excess of 10 percent, each, is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Because, however, the preponderance of the evidence is against the assignment of any rating higher than 10 percent, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. IV. Extraschedular Considerations If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The Veteran's disability neurological abnormalities in the lower extremities associated with his lumbar spine disability manifests by symptoms of intermittent radiating pain, dysesthesia, numbness, tingling, burning, and decreased sensory and pinprick testing in the toes, bilaterally. They are contemplated by the current assigned rating criteria under 38 C.F.R. § 4.124a, Diagnostic Code 8520. The rating schedule contemplates considerable time lost from work consistent with the percentage evaluations. 38 C.F.R. § 4.1 (2013). Accordingly, because these symptoms are contemplated in the rating schedule and do not result in marked interference with employment, referral for extraschedular consideration is not warranted. As the Veteran remains gainfully employed, the Board finds that a claim of entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised. See Rice v. Shinseki, 22 Vet.App. 447 (2009). ORDER An initial rating of 10 percent for neurological abnormalities of the right lower extremity associated with degenerative changes of the lumbosacral spine is granted. An initial rating of 10 percent neurological abnormalities of the left lower extremity associated with degenerative changes of the lumbosacral spine is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs