Citation Nr: 1418533 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 08-12 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy associated with a service-connected lumbar spine disability (low back disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G.R. Waddington, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1977 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In February 2011, the appellant testified at a hearing before the undersigned in Washington, D.C. The undersigned noted the issue on appeal and engaged in a colloquy with the Veteran toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the hearing is included in the electronic case file. In April 2011, the Board remanded this matter for additional development. Pursuant to the remand instructions, a VA examiner examined the Veteran and opined as to the etiology and severity of the Veteran's neurological symptoms as the symptoms are associated with a service-connected low back disorder. The Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West., 13 Vet. App. 141, 147 (1999). In February 2013, the Board granted a 10 percent disability rating for right lower extremity radiculopathy associated with a service-connected low back disability. In June 2013, the United States Court of Appeals for Veterans Claims (Court) vacated the February 2013 grant of a 10 percent disability rating for right lower extremity radiculopathy because the Board failed to provide an adequate statement of reasons and bases for its decision. 38 U.S.C. 7104(d)(1) (2013); see also May 2013 Joint Motion for Partial Remand. The issue of an increased initial rating for right lower extremity radiculopathy was remanded for an adequate explanation as to why the Veteran's right lower extremity radiculopathy is no more than 10 percent disabling. 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. FINDING OF FACT The Veteran's right lower extremity radiculopathy associated with a service-connected low back disability is characterized by mild shooting pain that extends from the low back to the right foot. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy associated with a service-connected low back disability have not been met at any time during the pendency of this appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.124a, Diagnostic Code (DC) 8520 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), provides that VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must inform the claimant of any information or evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appeal of the 10 percent disability rating assigned to the Veteran's right lower extremity radiculopathy stems from a granted claim of service connection. See February 2013 Board Decision. In initial rating cases, where service connection has been granted and an initial disability rating and effective date assigned, VCAA notice under 38 U.S.C.A. § 5103(a) is not required because the purpose that the notice serves has been fulfilled with the grant of service connection. Dunlap v. Nicholson, 21 Vet. App. 112 (2007). See December 2005 VCAA Letter. VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs) and private medical records (PMRs) are in the claims file. He has not identified any other outstanding records or evidence. See January 2014 90-Day Letter Response Form (stating that the Veteran has no additional evidence or information to submit). Thus, the duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). The duty to assist under the VCAA also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). VA examinations were performed in January 2006, August 2009, and June 2011. The examiners reviewed the pertinent medical history, physically examined the Veteran, and described the Veteran's disability in sufficient detail to enable the Board to make a fully informed decision on this claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The examinations are adequate to decide the claim. The Veteran has not stated and there is no other evidence indicating that there has been a material change in the severity of his scarring since he was last examined in June 2011. See 38 C.F.R. § 3.327(a). He expressly declined to submit additional evidence pertinent to his claim prior to the Board's ruling on this matter. January 2014 90-Day Letter Response Form. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95 (April 7, 1995). Thus, VA's duty to obtain a VA examination in relation to the Veteran's scarring has been met. 38 C.F.R. § 3.159(c)(4) (2013); Barr, 21 Vet. App. at 312. The Board has satisfied its duties to notify and assist and may proceed with appellate review. Merits of the Claim The Court remanded the issue of right lower extremity radiculopathy associated with a low back disability because the Board failed to adequately explain why the Veteran's radiculopathy does not warrant a disability rating over 10 percent. The medical evidence of record documents a mild neurological pathology, to include pain, numbness, and tingling affecting the right lower extremity. VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Veteran's right lower extremity radiculopathy has been assigned a 10 percent rating under DC 8520, which pertains to paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a. DC 8520 provides a: 10 percent rating for mild incomplete paralysis of the sciatic nerve; 20 percent rating for moderate incomplete paralysis of the sciatic nerve; 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent rating for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating for complete paralysis characterized by foot drop and slight droop, no active movement of the muscles below the knee, and weakened or (very rarely) lost flexion of the knee. 38 C.F.R. § 4.124a, DC 8520 (2013). Neither the Schedule nor the regulations define "mild," "moderate," "moderately severe," or "severe." Rather than relying on formal definitions, the Board uses these terms in the manner that best ensures an "equitable and just" outcome. 38 C.F.R. § 4.6 (2013). The Veteran has been diagnosed as having spondylolisthesis (Grade II) and radiculopathy of the low back. See June 2011 VA Examination Report. In September 2005 treatment records from a military facility document low back pain with occasional pain radiating to his legs. November 2005 treatment records from the same facility show moderate-to-serve bilateral foraminal stenosis at L5/S1 consistent with radicular pain. See also January 2006 VA Examination Report. In January 2006, a VA examiner diagnosed the Veteran as having minimal degenerative changes in his lumbar spine. A neurological examination revealed normal sensory and motor functioning of the lower extremities; knee and ankle jerk reflexes were measured at +2/+4 and the Veteran exhibited a normal gait and posture. During the examination, the Veteran stated that he had low back pain radiating down his lower extremities. He described the pain as burning, sharp, and cramping in nature and stated that he experienced a tingling sensation in his lower right extremity. The Veteran also stated that his back pain in general restricts his ability perform exertional activities such as climbing ladders, skiing, and skating. See January 2006 VA Examination Report; see also January 2006 Statement. The Veteran reported worsening radicular pain through Spring 2008. In October 2007, he reported progressive paresthesias of both legs and MRI findings showed impingement of the L5 nerve roots. See October 2007 VAMRs. Similarly, in April 2008 the Veteran reported constant shooting pain and tingling in his feet and pain in the night, which required him to regularly change sleeping positions. See April 2008 Substantive Appeal (VA Form 9). In contrast, the August 2009 VA examiner found no evidence of radiating pain on movement and no tenderness, ankylosis, and/or muscle spasm. The examiner also found no sensory deficits or motor weakness, normal lower extremity reflexes, and no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement. See also July 2008 PMRs (finding no radicular pain in the lower extremities and no arthraigias). The Veteran denied having fatigue, paresthesia, or numbness, but reported weakness of the spine and right leg, tingling in his feet, and severe back pain radiating down his right leg. See August 2009 VA Examination Report. At the February 2011 VA hearing, the Veteran stated that his burning low back pain radiates to his right foot four out of seven days a week and that he experiences tingling on the bottom of his right foot on a daily basis and occasionally in his left foot. The Veteran also stated that the right-foot tingling was present at the hearing. He described how on bending he experienced as sharp, shooting pain that runs down the back of his right leg, behind the knee, and down to about his ankle on bending. According to the Veteran, he is not able to easily pick up his foot due to his back disorder. See also July 2009 Substantive Appeal (describing burning back pain). The June 2011 VA examiner noted moderate low back pain, moderate-to-severe foraminal impingement at L5/S1, and right L5/S1 radiculopathy with mild neurological sensory sequelae. See also May 2011 PMRs (noting right-side leg and foot numbness and tingling due to nerve root impingement). On examination, the Veteran demonstrated normal gait and nerve reflexes, mild muscle weakness and motor nerve involvement with great toe flexion, and normal light touch responsiveness. A sensory examination revealed right-lower-side L5/S1 deep peroneal nerve involvement with decreased vibration, position sense, and pinprick responsiveness. Further, the June 2011 VA examiner found the Veteran's statements regarding his radicular pain were consistent with the medical evidence. The Veteran described right leg numbness and tingling localized to the great toe on his right foot as well as weakness in the right foot and pain radiating down his right leg. He stated that his low back pain flares up every two to three weeks for three to seven days at a time and that the flare ups increase the numbness in his right foot to the extent that he cannot drive comfortably. The flare ups decrease the Veteran's ability to participate in sports, exercise (he walks three miles on a treadmill on a regular basis), and perform certain chores. The June 2011 VA examination report constitutes highly probative evidence that weighs against a disability rating in excess of 10 percent for right lower extremity radiculopathy associated with a service-connected low back disability. The examination was conducted by a VA doctor who reviewed the Veteran's pertinent medical history, including diagnostic images, examined the Veteran, and carefully considered the Veteran's reported symptomology. Moreover, the examiner's diagnosis (L5/S1 radiculopathy with mild neurological sequelae) aligns with the Veteran's testimony that he regularly walks for a distance of three miles and remains active except during low back flare-ups. The August 2009 VA examiner's findings are outweighed by clinical and lay evidence that shows that the Veteran has experienced radicular pain since Fall 2005. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that lay testimony regarding symptoms such as pain that are experienced on a first-hand basis constitutes competent evidence); Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007). Thus, the preponderance of the evidence weighs against a disability rating in excess of 10 percent for right lower extremity radiculopathy. See 38 C F R. § 4 124a, DC 8520. The Veteran does not allege, and the record does not otherwise show, that he is unable to engage in substantially gainful employment due to his right-side radicular pain. See June 2011 VA Examination Report (stating that the Veteran is employed and that he had not lost more than a week from work over the previous year). Thus, the appeal does not raise the issue of entitlement to a total disability rating based on individual unemployability (TDIU). See 38 C.F.R. §§ 3.340, 4.16 (2013); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that if the claimant or the record reasonably raises the question of whether the claimant is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is the issue of whether a TDIU as a result of that disability is warranted). The Board has considered whether the evaluation of the Veteran's right lower extremity radiculopathy should be referred for extraschedular consideration. See 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the Schedule are averages, an assigned rating may be adequate to address the average impairment in earning capacity caused by the disability, but not completely account for the Veteran's individual circumstances. Thun, 22 Vet. App. at 114. In exceptional situations where the rating is inadequate, the case may be referred for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the Schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extra-schedular rating. Id. Referral for extraschedular consideration is not warranted. A comparison of the Veteran's lower right side radiculopathy and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). The Veteran's radicular pain is manifested by pathology and symptoms addressed by the rating criteria for paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a, DC 8520. Thus, the rating criteria reasonably describe the Veteran's service connected sciatic nerve disability and the Veteran does not have any symptoms associated with this disability that have been left uncompensated or unaccounted for by his assigned schedular rating. See Thun, 22 Vet. App. at 115. There is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization, see id. at 118-19, and referral for extraschedular consideration is not warranted. The preponderance of the evidence is against the Veteran's claim. Thus, the benefit-of-the-doubt rule does not apply and entitlement to an increased initial rating for right lower extremity radiculopathy associated with a service-connected low back disability is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. ORDER An initial disability rating in excess of 10 percent for right lower extremity radiculopathy associated with a service-connected low back disability is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs