Citation Nr: 1754769 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-22 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a right hip disorder. 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for hemorrhoids. 3. Entitlement to a rating in excess of 20 percent for a low back disability. 4. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served in the Army Reserve from February 1975 to February 1978 that included periods of active duty for training (ACDUTRA) from April 5, 1975 to April 18, 1975 and from June 5, 1977 to June 17, 1977. She also had periods of inactive duty for training (INACDUTRA). This appeal to the Board of Veterans' Appeals (Board) is from October 2011 and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). During the course of the appeal, a July 2013 rating decision assigned a separate 20 percent rating for right lower extremity radiculopathy associated with the lumbar disability. Additional relevant evidence was added to the record after the most recent May 2014 supplemental statement of the case. The Veteran's representative waived initial RO consideration of the evidence, which allows the Board to consider the evidence in the first instance. See September 2017 Third Party Correspondence. FINDINGS OF FACT 1. A December 2010 Board decision denied service connection for hemorrhoids and a right hip disability. 2. Evidence received since the December 2010 Board decision is cumulative or redundant, does not relate to an unestablished fact necessary to substantiate the claims for service connection for hemorrhoids and a right hip disability, and does not raise a reasonable possibility of substantiating the claims for service connection. 3. Prior to September 12, 2016, the Veteran's low back disability was manifested by limitation of motion, painful motion, and disturbance of locomotion; beginning on this date forward flexion was limited to 25 degrees and there was no evidence of ankylosis at any time during the appeal. 4. Throughout the appeal the Veteran had moderate radiculopathy in the right lower extremity. 5. Throughout the appeal, the Veteran had mild radiculopathy in the left lower extremity associated with her service-connected low back disability. CONCLUSIONS OF LAW 1. New and material evidence has not been received since the December 2010 Board decision, and the claim for service connection for hemorrhoids is not reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has not been received since the December 2010 Board decision, and the claim for service connection for a right hip disability is not reopened. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). 3. Prior to September 12, 2016 the criteria are not met for a rating in excess of 20 percent for the low back disability, but beginning on this date the criteria are met for a 40 percent rating. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code 5243 (2017). 4. The criteria are not met for a rating in excess of 20 percent for right lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Code 8520 (2017). 5. The criteria are met for a separate 10 percent rating for left lower extremity radiculopathy. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The duty to notify has been met. See August 2011 VCAA letter. Neither the Veteran nor her representative has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances . . . it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the Veteran . . . ." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, service personnel records, and VA treatment records have been obtained, to the extent available. Lay statements have been added to the record and the Veteran had VA examinations in conjunction with her low back claim that is adequate to rate the disability. The representative's March 2012 written argument states that the Veteran's March 2012 VA examination is not of record, however, the Board notes that it may be found in CAPRI records received in November 2014 and LMC Documents received June 23, 2012. There is no indication of additional available existing evidence that is necessary for a fair adjudication of the claims being decided herein. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria and Analysis The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. When, after careful consideration of all the procurable and assembled data, a reasonable doubt arises regarding service origin or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Petition to Reopen As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). Generally, a claim which has been denied in a final unappealed Board decision may not be reopened and allowed. 38 U.S.C. § 7104 (2012). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). To reopen a claim following a final decision, new and material evidence must be submitted. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Shade, 24 Vet. App. at 117. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101 (21), (24) (2012); 38 C.F.R. § 3.6(a), (d) (2017); Biggins v. Derwinski, 1 Vet. App. 474 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2017). In December 2010, the Board denied the service connection claim for a right hip disorder on the basis that there was no probative evidence of a hip injury in service or evidence that linked the current right hip disorder to service or service-connected low back disability. With regard to claim for service connection for hemorrhoids, the Board found no evidence of the claimed disability during a period of ACDUTRA and although it was noted during a period of INACDUTRA it was not eligible for service connection since service connection may only be established for an injury that occurred during INACDUTRA and not for a disease process. The Board has reviewed all of the evidence added to the record since the December 2010 Board decision, particularly the medical and lay evidence, and finds that while the additional medical evidence submitted is new, it is not material to the claims since it does not address any of the critical elements that was lacking when the claim was previously considered. The evidence is essentially cumulative of evidence previously considered. The Veteran's assertions are essentially not changed (see Statement in Support of Claim received December 2011 and Form 9 received August 2013) and VA treatment records continue to show evidence of hemorrhoids and right hip symptoms (see C&P Exam received January 2011 and CAPRI records received November 2014 and October 2016). None of the evidence indicates the Veteran had a right hip injury during her service or that her hemorrhoids were present during a period of ACDUTRA. Furthermore, no evidence has been added to the record that suggests there is a nexus between the claimed disabilities and service. In sum, the newly received evidence does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claims. Accordingly, the evidence received since the denial of the hemorrhoids and right hip disability claims in December 2010 is not new and material, and reopening of service connection for the claimed disabilities is not warranted. B. Increased Rating Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.§ 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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. If the disability has undergone varying and distinct levels of severity throughout this time period, staged ratings may be assigned. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Rating Formula or Diseases and Injuries of the Spine (General Formula), with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a. The Rating Schedule provides that normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. See 38 C.F.R. § 4.71a, Note 2 of the General Formula. Intervertebral disc syndrome is rated under the general formula for rating diseases and injuries of the spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Code 5243 (2017). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran asserted in February 2012 that her low back disability had worsened. See VA 21-4138 Statement in Support of Claim received in February 2012. In November 2011, the Veteran complained of bilateral leg weakness. See CAPRI records received November 2014. On March 2012 VA examination, the Veteran reported that prolonged sitting produced a lot of pain over the sacrum. The clinician noted that the Veteran was guarded with any type of right lower extremity examination and she refused to bend, extend, or side-to-side bend her back. All ranges of motion normally tested were noted to be at zero degrees and no repetitive testing was performed due to pain. She also did not allow examination of the right lower extremity due to hip pain; however, she put on her socks and shoes without difficulty. She reported that flare-ups impacted her sitting, bending, lifting, and twisting. She exhibited pain on movement and disturbance of locomotion. There was localized tenderness or pain to palpation for the joints and/or soft tissue. She had guarding or muscle spasm of the thoracolumbar spine severe enough to result in an abnormal gait. Muscle strength was 3/5 in the right hip, knee, and ankle. The left lower extremity exhibited normal strength. Sensation was normal bilaterally. The Veteran had severe constant pain; moderate paresthesia and/or dysesthesias; and mild intermittent pain and numbness in the right lower extremity. The overall severity of the radiculopathy was moderate. The left lower extremity was normal. The Veteran used a cane constantly. See C&P Exam received June 2012. In March and June 2012, she had exacerbations of low back pain and again complained of bilateral leg weakness. An episode of left leg weakness was also reported in November 2012. See CAPRI records received in November 2014. On September 2016 VA examination, the Veteran reported that over the past 18 months her low back pain had worsened. It was mostly intermittent, but constant at times. Prolonged sitting or standing increased the pain and her average pain was primarily 8/10 in severity. Radiating pain was intermittent. She denied having episodes of flare-ups. The examination revealed forward flexion was from 0 to 25 degrees; extension and bilateral lateral flexion were from 0 to 10 degrees; and bilateral rotation was from 0 to 15 degrees. Pain was noted on all ranges of motion tested, but it did not result in or cause functional loss and there was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing, which did not result in any additional limitation after three repetitions. The clinician indicated that the Veteran was not examined immediately after repetitive use over time or flare-ups, and that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The clinician was unable to state without speculating whether pain, weakness, fatigability or incoordination significantly limited her functional ability with repeated use over time or flare-ups. She was unable to state the functional limitation or estimate loss of range of motion without speculating because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Muscle strength testing revealed 3/5 in the right lower extremity. The left lower extremity revealed 3/5 strength in hip and knee flexion, and 4/5 strength in ankle plantar and dorsiflexion. The right lower extremity had constant pain, paresthesia and/or dysthesias, and numbness that were moderate in severity. The left lower extremity had mild constant pain. The sciatic nerve was involved in both lower extremities and the overall severity of the radiculopathy was moderate for the right side and mild for the left side. There was no evidence of ankylosis of the spine and there was no intervertebral disc syndrome. The Veteran regularly used a cane for stability and support. The examiner noted that the left lower extremity radiculopathy is a progression of the service-connected low back disability. See C&P Exam received September 2016. In light of the evidence, the Veteran's low back disability meets the criteria for a 40 percent rating beginning on September 12, 2016. On this date forward flexion of the lumbar spine was only to 25 degrees. A higher rating is not warranted since there was no evidence of ankylosis on examination. Prior to September 12, 2016, there is no evidence that the criteria for a higher rating were met or more closely approximated. The Veteran had an examination in March 2012 and while the examiner entered "0" for all ranges of motion that were to be tested, these are not shown to be actual findings since the examiner noted that the Veteran refused to bend, extend, or side-to-side bend her back. Some bending was apparently able to be achieved, although not through testing, since Veteran was able to put on her socks and shoes without any difficulty. Treatment records noted her complaints, but did not include any range of motion tests. The Board considered other factors, such as pain, painful motion, and disturbance of locomotion, but none of these were shown to produce additional limitation of motion. In March 2012, the Veteran reported that flare-ups impacted bending and twisting, which may have resulted in additional limitation of motion, but there is no evidence that these flare-ups occurred with sufficient frequency or duration to approximate the criteria for a higher rating. The Veteran denied having flare-ups in September 2016 but did have increased pain with certain prolonged activities. However, pain alone does not amount to additional functional impairment. Thus, a preponderance of the evidence is against a rating in excess of 20 percent prior to September 12, 2016. Beginning on this date, however, the criteria for a 40 percent rating, but no higher, are met. The Board also notes that the Veteran has bilateral lower extremity radiculopathy associated with her service connected disability. The RO assigned a 20 percent rating for the right lower extremity. The evidence shows that the Veteran's radiculopathy involves the sciatic nerve, which is rated under Code 8520. Under this regulation, an 80 percent disability rating is warranted for complete paralysis of the sciatic nerve; characterized by a foot that dangles and drops, the lack of any active movement below the knee, or weakened or lost motion below the knee. A 60 percent disability rating is warranted for incomplete paralysis of the sciatic nerve that is severe and marked by muscular atrophy. A 40 percent disability rating is warranted for moderately severe incomplete paralysis of the sciatic nerve. A 20 percent disability rating is warranted for moderate incomplete paralysis of the sciatic nerve. A 10 percent disability rating is warranted for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured 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. The Board observes that the terms "mild," "moderate," and "severe" are not defined in the regulations. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Although the use of the terms "mild," "moderate," and "severe" by VA examiners and others is evidence to be considered by the Board, it is not dispositive of the issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Applying the relevant rating criteria to the facts in this case, a greater rating of the Veteran's right lower extremity would require symptoms of incomplete paralysis that are moderately severe or worse, or complete paralysis. Throughout the appeal, the Veteran had radicular complaints that included weakness and numbness. Both VA examiners evaluated her radiculopathy and the findings were consistent with moderate incomplete paralysis. Right lower extremity strength was no worse than 3/5, there was no worse than a moderate decrease in sensation, paresthesia and/or dysesthesias were moderate, and there was no evidence of atrophy. Pain was moderate and at times severe. Taking into consideration the various components used to evaluate radiculopathy, the overall severity of her right lower extremity radiculopathy is shown to be no worse than moderate. In light of the opinion offered by September 2016 examiner, a separate compensable rating is granted for left lower extremity radiculopathy. Prior to this examination, the record notes complaints of left lower extremity weakness, however, the March 2013 VA examination included an evaluation for neurological disorders and found no abnormality with regards the left lower extremity. Therefore, while the Veteran believed he had weakness in the leg, the medical evidence shows full strength and no abnormality prior to September 12, 2016. Based on the findings of this examination, there was mild pain due to radiculopathy, but no other symptomatology. In light of this evidence and the Veteran's statements, the Board finds only mild radiculopathy is shown. Thus, a separate 10 percent rating is warranted. ORDER New and material evidence having not been received, the petition to reopen the claim for service connection for hemorrhoids is denied. New and material evidence having not been received, the petition to reopen the claim for service connection for a right hips disability is denied. Prior to September 12, 2016, a rating in excess of 20 percent for a low back disability is denied, but beginning on this date a 40 percent rating is granted, subject to the regulations governing the payment of monetary awards. An initial rating in excess of 20 percent for right lower extremity radiculopathy is denied. A separate 10 percent rating is granted for left lower extremity radiculopathy, subject to the regulations governing the payment of monetary awards. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs