Citation Nr: 18132226
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-49 650
DATE:	September 6, 2018
ORDER
Entitlement to an initial rating in excess of 20 percent for left lumbar radiculopathy is denied.
Entitlement to an initial rating in excess of 20 percent for right lumbar radiculopathy is denied.
FINDINGS OF FACT
1.  The Veteran’s left lumbar radiculopathy of the lower extremity has not resulted in more than moderate incomplete paralysis of the left sciatic nerve.
2.  The Veteran’s right lumbar radiculopathy of the lower extremity has not resulted in more than moderate incomplete paralysis of the right sciatic nerve.



CONCLUSIONS OF LAW
1.   The criteria for entitlement to an initial rating in excess of 20 percent for left lumbar radiculopathy have not been satisfied.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520.
2.   The criteria for entitlement to an initial rating in excess of 20 percent for right lumbar radiculopathy have not been satisfied.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 1972 to September 1975.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  Jurisdiction was subsequently transferred to the RO in Winston-Salem, North Carolina.
Entitlement to initial ratings in excess of 20 percent for left and right lumbar radiculopathy.
During the course of the appeal the Veteran was granted service connection for lumbar radiculopathy of the bilateral lower extremities and assigned a 20 percent rating for each lower extremity, as a neurological manifestation of his lumbar spine disability. 
The Veteran currently receives separate 20 percent ratings for radiculopathy under 38 C.F.R. §§ 4.124a, DC 8520 (addressing paralysis of the sciatic nerve).  Under this diagnostic code, the ratings are as follows: A 20 percent rating is appropriate when there is incomplete paralysis of the sciatic nerve which is “moderate” in nature; a 40 percent rating is appropriate when there is incomplete paralysis of the sciatic nerve which is “moderately severe” in nature; a 60 percent rating is appropriate for severe incomplete paralysis with marked muscular atrophy, and an 80 percent rating is appropriate with complete paralysis, with foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  38 C.F.R. §§ 4.124a, DC 8520.
As the Veteran’s lumbar radiculopathy of both lower extremities share the same etiology and symptoms, the Board will address them together.  After consideration of the evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 20 percent for radiculopathy of either lower extremity.  The described symptoms of the Veteran’s peripheral neuropathy are best characterized as moderate.  During the Veteran’s June 2013 VA examination, he had moderate intermittent pain, moderate paresthesias and/or dysesthesias, moderate numbness in the right lower extremity, and mild numbness in the left lower extremity.  He also had a decreased sensation to light touch.  The examiner concluded that the Veteran’s lumbar radiculopathy was of a moderate nature.
VA treatment records show the Veteran is prescribed gabapentin to treat tingling and numbness in the hands.  VA treatment records also show that the Veteran denied having tingling or numbness on examination at times.  Records provided by the Social Security Administration (SSA) show the Veteran is in receipt of SSA benefits for lumbar spine disability.  These records do not discuss the Veteran’s left and right lumbar radiculopathy.
Additionally, in his January 2016 VAF 9, Appeal to Board of Veterans’ Appeals, the Veteran reported he is prescribed medication to treat symptoms of tingling and numbness related to his lumbar radiculopathy, which requires constant use of assistive devices to include a cane and a walker to support ambulation.  In his April 2014 notice of disagreement (NOD), he endorsed symptoms of pain and explained wearing a back brace 24 hours, swollen legs and feet, swollen arms, tingling and the inability to hold ink pens, as well as high blood pressure.   
Based on the pertinent evidence set forth above, the Board determines that any staged ratings higher than those already assigned is not warranted at any time during the appellate term.  The Board recognizes that according to the Veteran, the degree of severity of his lumbar radiculopathy disability is more severe than the current disability ratings reflect.  Based on his report of symptoms, including his description of tingling and numbness, the Board agrees that the Veteran’s left and right lumbar radiculopathy should be compensated for moderate symptoms.  This determination is reinforced by the Veteran’s description of being able to walk, stand, or squat for extended periods as indicated on the June 2013 VA examination report.  The Veteran reported that these symptoms include pain and weakness in the legs.  However, the competent medical evidence of record does not show compensation for moderately severe symptoms is warranted.  The June 2013 VA examination shows the Veteran has 3/5 muscle strength in knee extension/flexion, ankle plantar flexion, and ankle dorsiflexion.  Despite the Veteran’s difficulty with extended walking and symptoms of pain and weakness addressed in detail by the June 2013 VA examination report, the examiner determined the Veteran’s condition was moderate.  Therefore, the Board agrees that the Veteran’s left and right lumbar radiculopathy has been characterized by moderate symptoms.
The Board acknowledges the Veteran’s statements describing symptoms of his bilateral lower leg disabilities to include swelling, tingling, and numbness in both legs.  The Veteran is competent to report the symptoms associated with his service-connected disabilities and the extent of his impairment.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  These statements describe symptoms of the Veteran’s bilateral lower leg disabilities, particularly pain worsened by prolonged walking, squatting, and standing, numbness, tingling, and weakness.  The Board also acknowledges the Veteran reports constant use of assistive devices to support ambulating.  They are consistent with the observations noted on the VA examinations and treatment records.  Here, the Board finds the objective clinical findings by medical professionals aware of his symptoms more probative than the Veteran’s statements.  The examiners are medical professionals, and they were able to review the overall record, including the Veteran’s history and opinions.  As discussed above, an examination was provided to ensure that the record reflects the current extent of these disabilities, and these findings are responsive to the pertinent rating criteria.  
The June 2013 VA examination report reflects diagnosis of Intervertebral Disc Syndrome (IVDS), of incapacitating episodes at least 1 week but less than 2 weeks (as defined in Note 1 to the formula for rating IVDS).  While the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides for a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, the Veteran has not reported experiencing incapacitating episodes for which he was prescribed bed rest.  Thus, a higher schedular rating available under the formula for rating IVDS based on incapacitating episodes is not warranted.  Based on the above, the Board finds that the evidence of record establishes that the Veteran’s incomplete paralysis of the sciatic nerve is best rated as moderate in each lower extremity.  38 C.F.R. § 4.124, DC 8520.
Finally, consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a schedular rating in excess of that assigned.  For all the foregoing reasons, the Board finds that, there is no basis for further staged rating for the Veteran’s radiculopathy of the left and right extremities based on moderate paralysis of the sciatica nerve, pursuant to Hart, and that the claim for a higher rating for the disability is not warranted at any time during the appeal period and must be denied.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher ratings, that doctrine is not applicable.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
Extraschedular Consideration
The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is warranted in this case. In this regard, the Board notes that the availability of higher schedular ratings plays no role in an extraschedular analysis and that it is inappropriate for the Board to deny extraschedular referral on this basis.  The Board finds that the Veteran’s symptoms of lumbar radiculopathy of the left and right extremities are contemplated by the schedular rating criteria.  Neither the facts of the case nor the Veteran’s allegations raise the issue of extraschedular consideration.  Thus, no analysis is required.  See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board”) (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007).  See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). 
(Continued on the next page)
 
Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase.  See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009).  In this case, the Board acknowledges the June 2013 VA examiner’s conclusion that the symptoms of the Veteran’s lumbar spine disability impacted his ability to work in that he was unable to stand, sit, or walk for extended periods, and could not squat or bend as a result of weakness and pain in the back and legs.  There is no further discussion based on employment history or unemployability due to service-connected lumbar radiculopathy disability.  
Additionally, a February 2016 application for pension for COPD and congestive heart failure indicates the Veteran reports that he has not worked since 2004.  A May 2016 private correspondence from Dr. J.L.L., opines that the Veteran is unable to tolerate physical activity in the work environment related to his multiple “medical comorbidities.”  While the opinion notes functional limitations, the opinion does not establish that the Veteran is unable to obtain or maintain employment as a result of service-connected disability.  Additionally, the June 2013 VA examination report and medical records do not show that the Veteran has raised the question of unemployability due to service-connected left and right lumbar radiculopathy.  Therefore, no further discussion of a TDIU is necessary.
 
JAMES G. REINHART
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C.S. De Leo, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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