Citation Nr: 1756652 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 05-33 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to an initial rating in excess of 10 percent for neurological manifestations of the left lower extremity. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from August 1996 to June 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia that granted service connection for neurological manifestations of the left lower extremity and assigned a 10 percent rating. In March 2012 and April 2015, the Board remanded this appeal for additional development, including taking all reasonable measures to schedule the Veteran for a VA examination pursuant to applicable guidance for incarcerated Veterans. The Board notes that the Agency of Original Jurisdiction (AOJ) made several attempts to provide the Veteran with a VA examination, but that the Warden at the prison facility where the Veteran is incarcerated would not approve the Veteran to attend a VA examination at a VA Medical Centers, nor would the Warden approve of an examination to be completed by one of their medical doctors. In light of the above, the Board finds that there was substantial compliance with the prior Board remand directives, and additional remand for VA examination would be futile. Stegall v. West, 11 Vet. App. 268, 271 (1998). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU rating is part of an appeal for a higher initial rating claim when such claim is raised by the record. Here, statements from the Veteran has asserted that his service-connected disability renders him unemployable. As such, the Board finds that the record raises a claim for TDIU. The Board also notes that in statements in 2016 the Veteran appears to be raising new claims for VA benefits, including a claim for increased rating for postoperative degenerative disc disease of the thoracolumbar spine and a claim for entitlement to special monthly compensation for aid and attendance. The Board notes that if Veteran is intending to file separate claims for VA benefits he is advised that a claim for benefits raised after March 24, 2015 must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1 (p), 3.155, 3.160 (2017). Accordingly, if the Veteran desires further action on this matter additional action on his part is necessary - namely, he must submit the proper application form to VA. The issue of entitlement to a rating in excess of 20 percent for service-connected neurological manifestations of the left lower extremity, and the claim of entitlement to a TDIU, are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT Throughout the entire rating period on appeal, the evidence shows that the Veteran's left leg radiculopathy more closely approximates moderate incomplete paralysis of the sciatic nerve, but it did not more nearly approximate moderately severe incomplete paralysis. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an initial 20 percent rating, but no higher, for neurological manifestations of the left lower extremity are met. 38 U.S.C.A. § 1155 (West 2012); 38 C.F.R. § 4.124a, Diagnostic Codes 5293-8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Increased ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran claims generally that due to worsening symptomatology his service-connected neurological manifestation of the left lower extremity warrants an increased rating. For the entire rating period on appeal, neurological manifestation of the left lower extremity associated with postoperative degenerative disc disease has been rated at 10 percent under the rating criteria found at 38 C.F.R § 4.124a, Diagnostic Codes 5293-8520, as intervertebral disc syndrome with a residual condition analogous to a disease of the sciatic nerve. 38 C.F.R. § 4.27, Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve. Neuritis and neuralgia are rated as incomplete paralysis. Disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost. 38 C.F.R. § 4.124a (2017). The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that 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. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. 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. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id. at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." On VA examination in May 2005, the Veteran reported intermittent left foot pain elicited by physical activity and reviewed by rest and medication. Neurological examination of the lower extremities revealed motor function was within normal limits. Sensory function was abnormal with findings of left medial plantar surface decreased sensation. The left lower extremity reflexes were 2+ knee jerk and 2+ ankle jerk. There was negative straight leg raising on the left lower extremity. An EMG was consistent with left S1 radiculopathy. Medical treatment records in 2007 showed left leg neuropathy with hypersensitivity. The pain was intermittent and radiated down his inner left leg to his left foot. He also related left leg numbing. Examination showed no evidence of muscle atrophy, although the left foot was exquisitely tender to light touch along all aspects. In December 2007, the Veteran gave a history of left leg pain that radiated from the left lower back down the posterior leg to the foot and great toe. He noted that the toes and the sole of the left foot, including the arch were very sensitive to touch and temperature. He also endorsed numbness. The clinician noted guarding. The Veteran was reluctant to move the left lower extremity but strength was at least antigravity in all groups with encouragement. The knee jerks were 2+, the left ankle jerk was 1+. The sole of left foot was quite sensitive and he withdrew the foot from the examination. He was hypersensitive to any of the sensory modalities in the left foot. The gait was antalgic. He walked on his tiptoes briefly, but he did not heel walk due to complaints of discomfort. Left median and ulnar motor and sensory studies were normal. Needle examination revealed degenerative changes in a left tibialis anterior, medial and lateral gastrocs, the tensor fascia lata and lumbosacral paraspinal muscles consistent with a left L5-S1 radiculopathy. In 2008, the Veteran complained that his leg would give out. He reported daily severe pain and numbing. The clinician noted that radiculopathy affected his muscle strength with weakness of low extremity. He was on narcotic pain medication daily, NSAIDs, Neurontin and muscle relaxants. In statements in 2016 the Veteran reported that he required a wheelchair for ambulation. Veteran's Health/Activity Profiles from April 2017 show the Veteran requires medically assisted living, a medical bed and transportation by ADA van. He was restricted to no standing or walking for a year. Based on the evidence of record, the most pertinent of which is discussed above, the Board finds that the evidence of record more closely approximates moderate incomplete paralysis of a peripheral nerve throughout the rating period on appeal. In this regard, the evidence shows that the Veteran had diminished sensation in of the left lower extremity. In at least one occasion the Veteran also exhibited decreased ankle jerk. Needle examination revealed degenerative changes in the leg muscles that affected muscle strength, but no atrophy was noted. Motor and sensory studies were normal. Examination revealed guarding. The Veteran consistently reported experiencing numbness, pain, and weakness in his lower extremity, as reflects in his lay statements and VA treatment records. Most recently, the medical records and statements from the Veteran show that he requires a wheelchair for ambulation and is restricted to walking and standing, although there is no evidence to support a finding that the Veteran's limitations are due to his left leg radiculopathy. In light of the foregoing, the Board concludes that the Veteran's neurological manifestations of the left lower extremity more closely approximates a 20 percent disability rating. The Board also finds that the evidence does not more nearly approximate moderately severe or severe incomplete paralysis of the left lower extremity and the evidence was not approximately evenly balanced on this point at any time during the appeal period. Although there were abnormal findings of decreased sensations, as well as reports of numbness and pain, the Veteran demonstrated motor examination was normal and reflex testing was mostly normal throughout the relevant time period. Furthermore, there was no evidence of muscle atrophy or foot drop. Accordingly, it cannot be said that the nature and severity of the abnormalities more nearly approximated moderately severe or severe incomplete paralysis or that the evidence is in relative equipoise on this point. Here, evidence reflects that the Veteran experiences wholly sensory manifestations of incomplete paralysis of a peripheral nerve, and under § 4.124a only a maximum disability rating of 20 percent for wholly sensory manifestations of incomplete paralysis of a peripheral nerve. As neurological manifestations of the left lower extremity results in moderate incomplete paralysis, an initial rating of 20 percent, but no higher, is warranted. The benefit of the doubt doctrine has been resolved in favor of the Veteran with regard to the higher initial rating and is otherwise inapplicable because the preponderance of the evidence is against any higher initial rating. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 4.3. To this extent only, the appeal is granted at this time. As discussed below, whether the Veteran is entitled to an evaluation in excess of 20 percent for neurological manifestations of the left lower extremity is being remanded for further development. ORDER Entitlement to an initial 20 percent rating, but no higher, for neurological manifestations of the left lower extremity is granted, subject to controlling regulations governing the payment of monetary awards. REMAND After review of the record, the Board finds that a remand for further development is necessary to ensure that there is a complete record upon which to decide the claims. 38 U.S.C.A. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). Review of the record indicates there are relevant records that remain outstanding. Specifically, the Veteran requested that imaging studies and electromyography (EMG) and nerve conduction (NVC) studies conducted in 2013 and 2015, be obtained in support of his appeal for a higher rating. He specifically asked that records from the Columbia County Detention Center/Sheriff's Office in Appling, Georgia, be associated with the claims file. The AOJ attempted to obtain treatment records from that Coastal State Prison, however, the facility only provided April 2017 Health/Activity Profiles. Adequate attempts to obtain and associate these records with the Veteran's claim's file have not been made in accordance with VA's duty to assist. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2012); 38 C.F.R. § 3.159 (c) (2017). Of note, the evidence shows that during the pendency of this appeal the Veteran was incarcerated at the Ware State Prison, in Waycross, Georgia; Hancock State Prison in Sparta, Georgia, and; Coastal State Prison, Port Wentworth, Georgia. Treatment records from these facilities, if any, should also be obtained. The claim for entitlement to a TDIU is inextricably intertwined with the claim for increased rating for. Thus, adjudication of the TDIU claim is deferred. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to complete new VA Forms 21-4142 to authorize the release of medical evidence to VA from any prison in which he has been incarcerated. Obtain all records of treatment identified by the Veteran, including records with the Coastal State Prison Medical Unit, Columbia County Detention Center/Sheriffs Office Medical Unit, Hancock State Prison Medical Unit, and the Ware State Prison Medical Unit, to specifically include imaging studies, EMG and NVC studies conducted in 2013 and 2015. The AOJ must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the appeal will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the appeal may be readjudicated. 2. Then, readjudicate the Veteran's claims on appeal, to include the claim for entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. The appellant 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 2012). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs