Citation Nr: 1800407	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  11-15 224A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to separate ratings for radiculopathy of the bilateral lower extremities.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Morrad, Associate Counsel 







INTRODUCTION

The Veteran served on active duty from December 1967 to December 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In his June 2011 substantive appeal, the Veteran notified the Board that he did not want a Board hearing, and as such, the Veteran was not afforded with a hearing.  


FINDING OF FACT

For the entire period at issue, the service-connected low back disability has not been shown to be manifested by nerve involvement or separate neurological manifestations or abnormalities to include radiculopathy of the bilateral lower extremities.


CONCLUSION OF LAW

The criteria for a compensable separate rating for radiculopathy of the bilateral lower extremities have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8720 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

VA's duty to notify was satisfied by letters dated August 2008 and September 2011.  See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott, 789 F.3d at 1381 (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).

II.  Rating for Neurological Abnormalities

      Applicable Law

The General Rating Formula for Disease and Injuries of the Spine indicates that when evaluating a spine disability, any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a; Diagnostic Codes 5235 to 5243, Note 1. 

Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia.  38 C.F.R. § 4.124a, Diagnostic Codes 8520-8730.  Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve.  38 C.F.R. § 4.124a. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve.  38 C.F.R. § 4.124a, Diagnostic Code 8520.  A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy.  An 80 percent rating is warranted with complete paralysis of the sciatic nerve.  Id.  



	Pertinent Facts and Legal Analysis

The Veteran alleged symptoms of radiculopathy of the bilateral lower extremities.  At a June 2008 neurosurgery consultation, the Veteran complained of 40 years of pain down both posterior thighs to the heels.  He reported symptoms were better with rest.  The Veteran reported that his bilateral legs felt numb and weak after standing or walking, and improved with rest.  A physical examination revealed straight leg raise to 90 degrees with some back pain and pain in the left leg.  There was no weakness or atrophy.  A magnetic resonance imaging (MRI) report showed bulging discs with degenerative changes and narrowing, canal stenosis, right foramen narrowing.  At the time, his medical provider noted that surgical intervention was not required.

At a September 2008 VA examination, the Veteran walked with a cane and a moderately antalgic gait.  The Veteran's extensor hallices longus strength was decreased in the bilateral lower extremities.  There was no definite muscle atrophy, fasciculations, or tremors.  Sensation appeared intact to light touch, pinprick, vibration, monofilament, and proprioception.

An October 2011 VA examiner found no muscle atrophy, normal reflexes, and normal sensory findings upon examination.  No radicular pain or any other signs or symptoms due to radiculopathy were found.  

Because the evidence was unclear as to whether the Veteran had radiculopathy, a prior BVA decision in December 2015 remanded the case for a VA examination to determine whether a separate evaluation was warranted for radiculopathy.

In February 2016, the VA examiner noted that the Veteran was diagnosed with radiculopathy, by history.  Symptoms included mild constant pain in the right lower extremity and moderate constant pain in the left lower extremity.  The Veteran also reported symptoms of mild paresthesia and/or dysesthesia, and mild numbness in bilateral lower extremities.  Muscle strength testing revealed active movement against some resistance upon knee extension, ankle plantar flexion and ankle dorsiflexion, and no muscle atrophy was present.   He had normal reflexes but decreased sensation in foot and toes upon touching of the L5 region of the spine.  He did not have any trophic changes, his gait was normal, and his lower extremity nerves were normal. Importantly, the VA examiner cited to an electromyography (EMG) performed in February 2016 that showed normal lower extremities.  The EMG results also revealed that there was no definite electrodiagnostic evidence of lumbosacral radiculopathy or plexopathy, or peripheral neuropathy of the lower extremities.  The examiner determined that it was less likely than not that the Veteran had any radiculopathy, plexopathy, or peripheral neuropathy of the lower extremities.  In supporting his finding, he cited to the same February 2016 EMG report that evidenced the same.  He also cited to prior physicians'' reports that showed the uncertainty of etiology of the Veteran's symptoms including an April 1976 physician's report that the Veteran's subjective complaints could not be defined on an anatomical pathological basis and a December 2015 neurosurgeons report that did not confirm or deny radiculopathy.  

After a thorough review of the record, the Board finds that the weight of the competent and credible evidence establishes that the Veteran's low back disability was not shown to be manifested by nerve involvement or separate neurological manifestation or abnormalities to include radiculopathy of the bilateral lower extremities.  In making this determination, the Board notes that the evidence of record during this time period was conflicting with symptoms, signs, and objective testing suggesting different etiologies.   

On one hand, the Veteran has subjectively reported lower extremity weakness, numbness, paresthesia, and mild to moderate pain.  See June 2008 neurosurgery consultation; see also February 2016 VA examination.   Additionally, the Veteran exhibited positive signs of abnormalities in the lower extremities upon physical examinations.  For instance, the straight leg raising test was positive at the June 2008 neurosurgery consultation with some pain in the left lower extremity and the Veteran exhibited decreased strength in the bilateral lower extremities at the September 2008 VA examination.  However, the Board notes that these signs and symptoms of neurological impairment are based primarily upon the Veteran's subjective complaints.  The straight leg raising test is indicative of root impingement.  However, it does not necessarily indicate the presence of radiculopathy. 

In contrast, VA examinations in October 2011 and February 2016, both determined that there was an absence of radiculopathy.  The October 2011 VA examination was based upon an in-person examination with findings of no muscle atrophy, normal reflexes, and a normal sensory examination, all of which supported the examiner's finding of no radiculopathy.  The February 2016 examination was also based upon an in-person examination, thorough review of the Veteran's VA treatment records and VBMS records, and cited to objective medical testing by way of an EMG showing no radiculopathy in the Veteran's bilateral lower extremities.  Because these opinions reflect either an opinion based upon persona examination, as in the October 2011 examiner's case, or a comprehensive and factually accurate review of the record with accompanying detailed rationale based on the Veteran's medical history, the Board gives the opinions significant probative weight.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (explaining that an opinion is adequate where it includes a detailed description of the disability, takes into consideration the relevant history of the disability, and is supported by an analysis that the Board can weigh against other evidence).  

The Board is cognizant of the Veteran's reports of symptoms and that the reports of symptoms are lay testimony that suggests a diagnosis of radiculopathy.  However, the Board finds these statements are not competent evidence in terms of making a diagnosis of radiculopathy.  In this case, the diagnosis of radiculopathy is something that goes beyond mere observation.  It requires medical training and knowledge.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Accordingly, the Board finds that the statements by the Veteran that purport to suggest that a diagnosis of radiculopathy is appropriate are limited to no probative weight because it is not competent evidence.  

Therefore, the weight of the credible evidence is against the award of separate disability ratings for radiculopathy of the bilateral lower extremities.  As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved as to this issue.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.104, DC 8720 (2017).


ORDER

For the entire period at issue, entitlement to a separate compensable rating for radiculopathy of the bilateral lower extremities is denied




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs