Citation Nr: 1510789 Decision Date: 03/13/15 Archive Date: 03/24/15 DOCKET NO. 08-17 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1962 to September 1964. This matter initially came to the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In its rating decision, the RO granted entitlement to service connection for radiculopathy of the right and left lower extremities. The RO assigned separate initial ratings of 10 percent for both left and right lower extremity radiculopathy. The Veteran timely disagreed with the assigned ratings. In October 2009, September 2010 and February 2012, the Board remanded this case for further development. In January 2013, the Board denied an initial rating higher than 10 percent for radiculopathy of the right lower extremity and increased the assigned disability rating for the left lower extremity to 40 percent, effective September 22, 2011. In a December 2013 Order, the United States Court of Appeals for Veterans Claims granted a Joint Motion by counsel for the Veteran and VA to vacate in part the January 2013 Board decision and to remand only the claim for a higher initial rating for right lower extremity radiculopathy to the Board. The Board's decision on the rating for left lower extremity radiculopathy was not remanded. In July 2014, the Board again remanded the remaining claim to the Agency of Original Jurisdiction (AOJ) to arrange a new medical examination. For the reasons stated below, the AOJ complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's service-connected radiculopathy of the right lower extremity is productive of mild or moderate incomplete paralysis of the sciatic nerve. CONCLUSION OF LAW With reasonable doubt resolved in the Veteran's favor, the criteria for an initial evaluation of 20 percent, but no more, for radiculopathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8520 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans' Claims Assistance Act (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. When VA receives a complete or substantially complete application for benefits, it must give notice to the claimant concerning the evidence and information needed to substantiate the claim. The notice required depends on the general type of claim the Veteran has made. See e.g. Vasquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). For example, after receiving an ordinary application for service-connection, VA must inform the Veteran of all of the essential elements of the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran's appeal arises from his disagreement with the initial disability rating assigned after the RO granted his claim for service connection. Because the Veteran's claim for service connection was granted, his claim is substantiated, additional notice is not required, and any prior defect in the notice is not prejudicial. See Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003. VA's General Counsel has determined that while VA is required to issue a statement of the case when a "downstream element" - such as disagreement with the initial rating assigned after a decision to grant a claim for service connection - arises after the initial adjudication of a claim, 38 U.S.C.A. § 5103(a) does not require mailing of a separate notice concerning the information and evidence necessary to substantiate the newly raised issue. Id. The AOJ issued a statement of the case explaining its decision on the Veteran's claim for an increased initial rating in October 2011. The AOJ also mailed the Veteran a letter in May 2008 explaining how disability ratings are determined. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). In this case, VA obtained the Veteran's service treatment records and post-service VA treatment records. VA also received correspondence from a physician in private practice which includes an assessment of his lower extremities. To further assess the severity of the Veteran's symptoms, the AOJ arranged for the Veteran to be examined by VA physicians in February and March 2008, September 2010 and September 2011. The AOJ obtained an additional medical opinion in May 2012. Two VA physicians attempted electromyography tests of the Veteran in July and October 2010, respectively, which were discontinued at the Veteran's request after he complained of pain. After the Board's January 2013 decision was partially vacated by the Court, the AOJ arranged for yet another examination with the physician who had previously examined the Veteran in February 2008, September 2010 and September 2011. This examination, which included electromyography tests, took place in August 2014. For the reasons mentioned in the Joint Motion for Remand (JMR), VA has conceded that the September 2010 and May 2012 are not adequate for the purposes of rating the Veteran's right lower extremities. The Board finds that the August 2014 VA examination report is adequate for rating purposes. For these reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. Analysis Disability evaluations are determined by applying criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995). Further the Board acknowledges that "staged ratings" may be assigned during the appeal period if the disability worsens or improves during the appeal period. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's bilateral lower extremity radiculopathy is rated under 38 C.F.R. § 4.124a, DC 8520. Under DC 8520, a 10 percent evaluation is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent evaluation is assigned for moderate incomplete paralysis; a 40 percent evaluation is assigned for moderately severe incomplete paralysis; a 60 percent evaluation is assigned for severe incomplete paralysis with marked muscular atrophy; and an 80 percent evaluation is assigned for complete paralysis, i.e., "the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost." Id. When he was in the Army, the Veteran fell off of a truck and injured his back. He was hospitalized, but his examination on separation from service reported normal lower extremities. According to the February 2008 VA examination report, the Veteran had mild left lumbar radiculopathy. The examiner's report mentions normal motor strength in both lower extremities. Test results for his reflexes included "knee jerks 2+. Ankle jerks 1+ symmetrical" (measurements were apparently the same for both right and left knees and ankles). However, the Veteran was unable to walk heel to toe. His lower extremities were examined again by the March 2008 VA examiner, who reports muscle strength of "5-/5" in both lower extremities. The examiner recorded deep tendon reflexes of 1 in both knees and deep tendon reflexes "absent at bilateral ankles." Unlike the February 2008 report, the March 2008 report mentions chronic pain in both lower extremities. A report from the Veteran's private physician dated June 2008 indicates that the Veteran walked well on his heels and toes and had normal knee and ankle reflexes. In July 2008 correspondence, the same physician wrote that the Veteran experienced no radicular symptoms in his lower extremities and repeated his observation that the Veteran walked well on his heels and toes. By granting the JMR in December 2013, the Court found that the Board erred in relying on the September 2010 VA examination and a May 2012 medical opinion by the same examiner in deciding the Veteran's claim for an increased initial rating for radiculopathy of the right lower extremity because the focus of these examinations was the left lower extremity. For this reason, the Board does not rely on these reports in deciding the issue on appeal and will not discuss them further. A March 2008 VA treatment record mentions complaints of severe pain in the low back "worse since the last 2-3 years"; this record mentioned only the Veteran's left extremity. A treatment record approximately two weeks later reports that the pain "is also starting on the right buttocks." Attempts at electromyography examinations in July and October of 2010 were incomplete. According to the report of the September 2011 VA examiner, the Veteran denied both intermittent and constant pain in his right lower extremity. He also denied numbness, paresthesias and dysesthesias of the right lower extremity. The examiner also recorded the results of tests of muscle strength. On a scale of 1to 5 (1 meaning "no muscle movement" and 5 meaning "normal strength"), the Veteran had plantar flexion of 5 and ankle dorsiflexion of 4. The Veteran had normal reflexes of the right ankle. The September 2011 examiner indicated that the Veteran's right sciatic nerve and lower radicular nerve group were normal. The August 2014 VA examination report provides the most recent information about the Veteran's right extremity symptoms. The report mentions "mild right lower extremity intermittent pain, mild right lower extremity paresthenias dysesthesias . . . right lower extremity numbness." Muscle strength in the right knee was slightly reduced: 4 on a scale of 1-5. The Veteran also scored 4/5 on right plantar flexion and right ankle dorsiflexion. He had no muscle atrophy. He had "hypoactive" or +1 reflex measurements for his right knee and ankle and, on his sensory examination, he had "decreased" (as opposed to "normal" or "absent") sensation on light touch for his right lower leg, foot and toes. "Other sensory findings" were "mild sensory decreased L5=S1 R[igh]t" According to the examiner, all lower extremity nerves were normal. Pursuant to the Board's post-JMR Board remand, the August 2014 examination included an EMG study. Based on the EMG study, the examiner wrote that right lower extremities were abnormal. He also wrote "Right L5-S1 radiculopathy EMG 9/2/14. This is an abnormal study. At this time there is electrodiagnostic evidence of a right sided active radiculopathy primarily involving lower lumbosacral nerve roots." On the issue of "functional impact" the examiner wrote that lumbar radiculopathy "might interfere with physical employment status." In the "remarks" section of his report, the examiner wrote "Mild to moderate bilateral lumbar radiculopathy" In his report, the August 2014 VA examiner also checked "no" next to the question on the examination form: "Was the Veteran's VA claims file reviewed?" But in response to the follow-up question "If no, check all records reviewed:" the examiner indicated that he reviewed the VBMS file. Because the Veteran's entire VA claims file has been converted to an electronic file in the Veterans Benefit Management System ("VBMS"), the Board finds that the August 2014 VA medical opinion is adequate, the examiner's notation notwithstanding. See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) ("This Court, however, has not required VA medical examiners to perform a complete review of the entire claims file or state that they have done so in every instance"). The "Medical History" section of the report demonstrates the examiner's familiarity with the Veteran's prior complaints of right lower extremity radiculopathy. This examiner in particular was familiar with the Veteran, having examined him previously in February 2008, September 2010 and September 2011. The August 2014 report also provides the details of movement tests and also an EMG study which support the examiner's conclusions. The examiner also assessed the functional impact of the Veteran's symptoms by conceding that they could interfere with physical employment. Whether the Veteran is entitled to an initial rating higher than 10 percent depends on whether his symptoms more closely approximate "mild" or "moderate" incomplete paralysis of the right lower extremity. See 38 C.F.R. § 4.124a, DC 8520. Although the August 2014 examiner used the word "mild" to describe several of the Veteran's symptoms, his final impression was: "mild to moderate bilateral lumbar radiculopathy." This characterization is not binding on the Board. Nevertheless, based on the examiner's report, the Board finds that the evidence is approximately evenly balanced as to whether the Veteran's symptoms more closely approximately "mild" or "moderate" incomplete lower extremity paralysis. The test results show slightly less than normal muscle strength in the Veteran's right knee, right ankle and right foot. The Veteran had hypoactive reflexes in joints which had been normal at the time of the September 2011 VA examination, and the examiner recorded complaints of intermittent pain, abnormal touch sensation, and numbness. Moreover, there was electrodiagnostic evidence of abnormal right sided radiculopathy. With reasonable doubt resolved in favor of the Veteran, the Board finds that the Veteran's symptoms more closely approximate moderate incomplete paralysis of the right lower extremity. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board finds that the Veteran's symptoms do not approximate the criteria for a higher rating of 40 percent, i.e. "moderately severe" incomplete paralysis of the right lower extremity. The Veteran's tests of muscle strength in the right lower extremities were only somewhat reduced from normal "5/5" strength. The examiner described his right lower extremity pain as mild and intermittent. Parasthenias and/or dysesthenias were also mild. The Veteran had only mild decreased sensory findings. In the section of his report describing the condition of the lower extremity nerves, the examiner reported that all of the Veteran's right lower extremity nerves were normal. The examiner also described the Veteran's lower radicular nerve group as normal. A 60 percent rating is not appropriate because there is no evidence of muscle atrophy. An 80 percent rating is only authorized for "complete paralysis" of the right lower extremity. Thus, the reports of significant movement and strength in the Veteran's right foot and right knee are inconsistent with the criteria for an 80 percent rating. Finally, the Board will consider referral for an extraschedular rating. Such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. See Thun, 22 Vet. App. at 115. 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 adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those described by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The Board finds that the schedular rating adequately contemplates the Veteran's disability picture. The schedular criteria in DC 8520 - "incomplete paralysis" - Specifically contemplate difficult movement of the right lower extremity. The muscle strength in the Veteran's right knee, ankle and foot are only moderately below normal strength, and his associated pain is intermittent and mild rather than constant and severe. Moreover, the evidence does not reflect that the Veteran's right knee disability has caused marked interference with employment, frequent hospitalization, or that the symptoms in his right lower extremity have otherwise rendered impractical the application of the regular schedular standards. For these reasons, the Board finds that referral for an extraschedular evaluation is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating of 20 percent, but no more, for radiculopathy of the right lower extremity is granted. The appeal is allowed subject to the law and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs