Citation Nr: 1542293	
Decision Date: 09/30/15    Archive Date: 10/05/15

DOCKET NO.  14-12 177	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for left foot drop, claimed as secondary to a low back disability and radiculopathy of the left lower extremity.

2.  Entitlement to service connection for radiculopathy of the right lower extremity, claimed as secondary to a low back disability.

3.  Entitlement to an initial rating in excess of 40 percent for a low back disability.

4.  Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity.

5.  Entitlement to a total disability rating based on individual unemployability (TDIU).


ATTORNEY FOR THE BOARD

L. S. Kyle, Associate Counsel
INTRODUCTION

The Veteran served on active duty from August 1983 to January 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

The March 2012 rating decision granted service connection for a low back disability and radiculopathy of the left lower extremity, effective August 11, 2010; but denied service connection for left foot drop and radiculopathy of the right lower extremity.  

In a February 2014 rating decision, the Agency of Original Jurisdiction (AOJ) increased the initial rating for the low back disability from 20 percent to 40 percent, as well as the initial rating for the radiculopathy of the left lower extremity from 10 percent to 20 percent; both effective August 11, 2010.

Though it was explicitly denied in an unappealed September 2012 rating decision, entitlement to TDIU is an element of the appeal of the initial ratings for the low back disability and radiculopathy of the left lower extremity.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  .

The issues of entitlement to service connection for hypertension and erectile dysfunction, to include special monthly compensation for loss of use of a creative organ, were raised in an April 2014 statement that accompanied the Veteran's substantive appeal, but they have not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015).

The issue of entitlement to service connection for radiculopathy of the right lower extremity is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1.  Current left foot drop has not been demonstrated.

2.  The Veteran's low back disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes, as defined by VA regulation, having a total duration of at least six weeks during a twelve-month period; and his benefits are maximized if his disability is rated on the basis of neurologic and orthopedic manifestations rather than on the basis of incapacitating episodes.

3.  The Veteran has moderately severe radiculopathy of the left lower extremity.

4.  The Veteran has a combined rating of 60 percent due to service-connected disabilities resulting from a common etiology, and these service-connected disabilities prevent him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for left foot drop have not been met.  38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015).

2.  The criteria for a rating in excess of 40 percent for a low back disability have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-43 (2015).

3.  The criteria for a 40 percent rating for radiculopathy of the left lower extremity have been met since the effective date of service connection.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.40, 4.59, 4.124a, Diagnostic Code 8520 (2015).

4.  The criteria for entitlement to TDIU have been met since the effective date of service connection.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.16 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VCAA

The Veterans Claims Assistance Act of 2000 (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 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  

The claim of entitlement to TDIU is being fully granted.  Therefore, further notice or assistance is not required under VCAA.  In a letter dated in November 2011, the Veteran received required VCAA notice regarding the left foot drop.

The appeal with regard to the low back and left lower radiculopathy ratings arises from disagreement with an initial evaluation following the grant of service connection.  Once service connection is granted the claim is substantiated, additional VCAA notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

VA has also satisfied its duty to assist.  This duty includes assisting with the procurement of pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  All pertinent, identified medical records have been obtained and considered regarding this claim.  The Veteran has been provided several examinations during the appeal period.  These examinations were not inadequate with respect to rating the lower back disability or the radiculopathy of the left lower extremity, as they provide sufficient information to determine the appropriate evaluation under the VA rating schedule.

As there is no indication that any additional notice or assistance could aid in substantiating this claim, VA has satisfied its duties under the VCAA and proceeds with consideration of the Veteran's appeal.  38 U.S.C.A. § 5103A(a)(2); Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  

Service Connection for Left Foot Drop

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Service connection may be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In a January 2012 addendum to a December 2011 VA examination report, a VA examiner, noted that he did not find evidence of left foot drop during the December 2011 examination, but explained that the location of foraminal narrowing at the L5-S1 vertebrae shown by magnetic resonance imaging (MRI) was consistent with the left foot drop.  The December 2011 examination report shows that the Veteran reported a history of left foot drop; but had normal (5/5) muscle strength in ankle dorsiflexion and plantarflexion

The Veteran was provided another examination with the same physician in December 2013.  The December 2013 examination report indicates the Veteran had decreased sensation in the left foot.  Strength in left ankle plantar flexion was normal (5/5) and somewhat reduced in dorsiflexion (4/5).  Ankle reflexes were hypoactive, but present.  Sensation was normal or decreased, but present.  The examiner was not specifically asked to indicate whether there was foot drop, but in response to questions as to whether there was other neurologic impairment, he answered in the negative.

The January 2012 opinion suggested MRI findings support were consistent with left foot drop secondary to the service-connected low back disability and radiculopathy of the left lower extremity but that foot drop was not actually present during the December 2011 examination.  The December 2013 by the same examiner also did not indicate the presence of foot drop.  The reported muscle strength and absence of additional findings belies the presence of left foot drop.  

While the Veteran has reported a history of left foot drop, this was not found on examinations or during treatment.  His reports are competent; but the residual muscle strength and absence of findings weighs against a finding that he has current foot drop.  Therefore, service connection for left foot drop is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

However, it should be noted that symptoms, such as foot drop, are contemplated by the rating criteria for the Veteran's service-connected radiculopathy of the left lower extremity.  See 38 C.F.R. § 4.124a, Diagnostic Code 8520.  Therefore, this disability, although delineated as separate issue by the AOJ, will be discussed in the analysis of the Veteran's claim for a higher initial rating radiculopathy of the left lower extremity.

General Rating Considerations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. 

Higher Initial Rating for a Low Back Disability

The Veteran's low back disability is currently rated as 40 percent disabling under the General Rating Formula for Diseases and Injuries of the Spine.  A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  A higher rating is not warranted under the General Rating Formula unless there is unfavorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a.  

The Veteran's thoracolumbar spine was examined in December 2011, June 2012, and December 2013.  The examination reports noted there was no evidence of ankylosis.  There is nothing in the Veteran's VA or private treatment records that suggest he has unfavorable ankylosis of the entire thoracolumbar spine.  Therefore, a rating in excess of 40 percent is not warranted under the General Rating Formula for Diseases and Injuries of the Spine.

The Veteran' slow back disability can also be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is inapplicable, as the June 2012 and December 2013 examination reports note he has intervertebral disc syndrome.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243.  However, there have been no reports of physician prescribed bedrest as would be necessary for a higher rating under that formula.  Id.  Therefore, a higher rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

The Board is also required to evaluate any associated objective neurologic abnormalities under an appropriate diagnostic code when rating a low back disability.  38 C.F.R. § 4.71a.  In this case, radiculopathy affecting the left lower extremity is currently rated as a separate issue and will be discussed in more detail below.  Entitlement to service connection for radiculopathy affecting the right lower extremity has also been delineated as a separate issue by the AOJ, and it will be remanded for further development.  The issue of erectile dysfunction is being referred to the AOJ for initial adjudication, as it could be the result of neurological, as well as non-neurological, factors.  Analysis of the examination reports and other available treatment records does not reveal any bowel or bladder impairment as a result of neurological abnormalities associated with the Veteran's low back disability.  Therefore, it would inappropriate to assign an additional rating for a secondary neurologic abnormality, beyond the increase for radiculopathy of the left lower extremity granted by this decision, at this time.

The Board has also 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 an extra-schedular rating is warranted, as the question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996) (discussing 38 C.F.R. § 3.321(b)(1)).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008). 

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 that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).  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.  In the second step of the inquiry, the Board must determine whether the claimant's exceptional or unusual 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"). 

Here, the Veteran's low back disability has resulted in painful motion, weakness, fatigability, incoordination, and limitation of motion.  These symptoms are fully contemplated by the rating criteria.  Associated objective neurologic abnormalities are considered under the appropriate diagnostic code as provided by the rating criteria.  The Veteran has not reported any symptoms beyond orthopedic functional impairment and neurological abnormalities.  As these symptoms are fully contemplated by the rating schedule, referral for extra-schedular consideration is not warranted for the disability.

Higher Initial Rating for Radiculopathy of the Left Lower Extremity

The radiculopathy of the Veteran's left lower extremity is currently rated 20 percent disabling.  Radiculopathy of the lower extremity is rated as paralysis of the sciatic nerve under 38 C.F.R. § 4.124a, Diagnostic Code 8520.  A 20 percent rating is assigned for moderate paralysis.  Higher ratings are assigned as follows:  a 40 percent rating is assigned for moderately severe paralysis, a 60 percent rating is assigned for severe paralysis with marked muscular atrophy, and a 100 percent rating is warranted for complete paralysis.  Id.

The severity of the radiculopathy affecting the Veteran's left lower extremity has been addressed in three VA examination reports.  In December 2011, the Veteran's radiculopathy was described as mild.  However, in June 2012 and December 2013 it was described as moderate.  Accordingly, the AOJ resolved reasonable doubt in the Veteran's favor and assigned a 20 percent rating for radiculopathy of the left lower extremity from August 11, 2010, the effective date of service connection for the disability.  See 38 C.F.R. § 4.7.  

It should be noted, however, that Diagnostic Code 8520 differs from other diagnostic codes for rating diseases of the peripheral nerves in that it contains an intermediate rating for incomplete paralysis deemed "moderately severe."  Other diagnostic codes are limited to determinations of mild, moderate, and severe incomplete paralysis.  See 38 C.F.R. § 4.124a.  As such, the Disability Benefits Questionnaire (DBQ) used for the December 2011, June 2012, and December 2013 examinations did not provide the option for the examiner to indicate whether the Veteran's radiculopathy was moderately severe, as the only options listed on the DBQ form are mild, moderate, and severe.  Thus, the Board must make a determination of whether the additional symptoms reported on the December 2011, June 2012, and December 2013 examination reports and noted in the Veteran's treatment records support a finding of moderately severe radiculopathy, which would warrant a 40 percent rating under Diagnostic Code 8520.

As previously noted, a December 2013 VA examination report indicated the Veteran's radiculopathy has resulted in decreased sensation in the left foot, as well as hypoactive deep tendon reflexes and slightly decreased strength in the left ankle.  The examiner also noted severe intermittent pain in the left lower extremity as a result of radiculopathy.  The June 2012 examination report noted slightly decreased strength with respect to left great toe extension.  The Veteran's treatment records also include a well-documented history of his competent reports of stumbling and falling as a result of left foot drop.  Given the reports of intermittent severe pain and additional symptomatology to include left foot drop, the Board finds the impairment resulting from the radiculopathy of the left lower extremity more nearly approximates the criteria for a 40 percent rating under Diagnostic Code 8520 as moderately severe paralysis.  38 C.F.R. § 4.7.  Thus, a 40 percent rating is warranted for radiculopathy of the left lower extremity.

As with the evaluation of his lower back disability, the Board has also given consideration to whether extra-schedular consideration is warranted.  The Veteran has reported pain, numbness, and weakness as a result of the radiculopathy affecting his left lower extremity, as well as left foot drop, which has resulted in periods of instability.  These symptoms are fully contemplated by the rating criteria outlined in Diagnostic Code 8520.  Therefore, referral for extra-schedular consideration is not warranted for radiculopathy of the left lower extremity.



Combined Effects Extraschedular Rating

VA is also required to consider whether an extraschedular rating is warranted for the combined effects of the service connected disabilities.  Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014).  The combined effects extraschedular rating is meant to perform a gap filling function to provide compensation between the combined schedular rating and a total rating.  Johnson v. McDonald, at 1365-6.  In the instant case the Board is granting TDIU.  There is no gap to fill.

Entitlement to TDIU

TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Disabilities resulting from common etiology or a single accident are considered one disability for the purpose of meeting the percentage thresholds for TDIU.  Id.

When the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history, but not his or her age or any impairment caused by nonservice-connected disabilities.  See Pederson v. McDonald, 27 Vet. App. 276, 286 (2015); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.

This decision grants an increased 40 percent rating for the radiculopathy affecting the Veteran's left lower extremity, which brings his combined rating to 60 percent.  As the service-connected disabilities that result in the 60 percent rating are from a common etiology, he is eligible for TDIU on a schedular basis.  Id.  He has not worked since April 2010 because of impairment caused by his service-connected disabilities.  

In June 2012, a VA examiner determined the Veteran would not be able to perform any type of physical work due to his service-connected disabilities and would only be able to tolerate sedentary work with pain from periods of prolonged sitting or standing.  The Veteran has worked as a paramedic and in the construction field since separating from service.  Therefore, his service-connected disabilities prevent him from engaging in any of his past professions.  It is unreasonable to expect the Veteran to tolerate pain to perform sedentary work, which would most likely only rise to the level of marginal employment because he has no experience or specialized education in a field that lends itself to sedentary work.  See 38 C.F.R. § 4.16(a).  Accordingly, the Board finds the evidence establishes that it is at least as likely as not that the Veteran's service-connected disabilities prevent him from engaging in substantially gainful employment for which his education and occupational experience would otherwise qualify him, and TDIU is warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.


ORDER

Entitlement to service connection for left foot drop is denied.

Entitlement to an initial rating in excess of 40 percent for a low back disability is denied.

Entitlement to a 40 percent rating for radiculopathy of the left lower extremity is granted from the effective date of service connection.

Entitlement to TDIU is granted from the effective date of service connection.


REMAND

VA has a duty to ensure that any medical examination or opinion it provides is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)).  A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  There must be a reasoned medical explanation connecting the expert's observations and conclusions.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.").  The Board is required to reject an insufficiently detailed medical report.  Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

Here, the December 2011, June 2012, and December 2013 VA examinations are inadequate to support a denial of the Veteran's claim of entitlement to service connection.  The Veteran's VA and private treatment records clearly show a history of radiculopathy affecting the right lower extremity.  However, these records were not discussed, or even noted, by the examiner who conducted the December 2011, June 2012, and December 2013 examinations.  The examination reports simply include a notation that the Veteran does not have radiculopathy affecting the right lower extremity and do not contain any underlying rationale.  Therefore, they are inadequate to make an informed decision on the Veteran's claim.  See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 123.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a new examination to determine whether it is at least as likely as not that he has radiculopathy of the right lower extremity secondary to his service-connected lower back disability.

The claims file must be reviewed by the examiner in conjunction with the examination.  If radiculopathy of the right lower extremity is not found currently, the examiner must address whether the previously diagnosed radiculopathy of the right lower extremity noted in the Veteran's treatment history was misdiagnosed or is now in remission.  If it is deemed that the previously diagnosed disability is in remission, the examiner must state whether it is as least as likely as not that the condition was present at any point during the appeal period, which extends from August 2010 to the present.

The examiner should provide reasons for the opinions.  If the examiner cannot provide an opinion without resorting to speculation, he or she should state whether the inability to provide the needed opinion is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence, which if obtained, would permit the opinion to be provided.

2.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case.  Then, return the case to the Board, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs