Citation Nr: 0301548 Decision Date: 01/28/03 Archive Date: 02/04/03 DOCKET NO. 00-19 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE The propriety of an initial 20 percent evaluation for a low back disability, characterized as L3-L4, L4-L5, and L5-S1 bulging discs. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. A. Carsten, Associate Counsel INTRODUCTION The veteran had active military service from January 1996 to January 2000. This matter comes before the Board of Veterans' Appeals (Board) from an April 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which granted service connection for L3-L4, L4-L5, and L5-S1 bulging discs and assigned a 20 percent evaluation effective January 18, 2000. The veteran disagreed with the assigned evaluation and subsequently perfected this appeal. FINDINGS OF FACT 1. VA has satisfied its duty to notify and has obtained all evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's low back disability is manifested by electrodiagnostic findings consistent with old left L5 radiculopathy; magnetic resonance imaging (MRI) findings of suspected left paravertebral muscle spasm and minimal concentric disc bulging from the L3 to S1 level; muscle strength in the left extensor hallucis longus of 2.5/5; and flexion of the lumbar spine limited to 85 degrees and extension limited to 10 degrees. 3. Under the rating criteria in effect prior to September 23, 2002, the findings associated with the veteran's low back disability approximate no more than moderate symptoms of intervertebral disc syndrome with recurring attacks. 4. Under the rating criteria in effect for the period beginning September 23, 2002, the chronic orthopedic and neurologic manifestations associated with the veteran's disability approximate no more than slight limitation of motion of the lumbar spine and moderate incomplete paralysis of the sciatic nerve. There is no objective evidence of incapacitating episodes. 5. The veteran has not submitted evidence tending to show that his service-connected low back disability requires frequent hospitalizations or causes marked interference with employment beyond that contemplated in the schedular standards. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for a low back disability are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5293 (2002). 2. For the period beginning September 23, 2002, the criteria for a 30 percent evaluation, and no more, for a low back disability are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5293, 4.124a, Diagnostic Code 8520 (2002); 67 Fed. Reg. 54,345, 54,349 (Aug. 22, 2002) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5293). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West Supp. 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West Supp. 2002); 38 C.F.R. § 3.159(b) (2002); see Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West Supp. 2002); 38 C.F.R. § 3.159(c) (2002). The veteran was notified of the laws and regulations pertaining to the evaluation of his low back disability in the April 2000 rating decision, the July 2000 statement of the case (SOC), and the March 2002 supplemental statement of the case (SSOC). These documents also informed him of the evidence of record and of the reasons and bases for denial. In an October 2002 letter, the veteran was notified that there had been a change in the law regarding the evaluation of intervertebral disc syndrome. The veteran was provided 60 days to respond to the letter or submit additional evidence or argument. No response was received. In March 2002, the veteran was notified of his rights in the VA claims process. The March 2002 SSOC specifically advised the veteran of the laws and regulations pertaining to VA's duty to notify and to assist. The veteran was notified that VA would make as many requests as are necessary to obtain relevant records from a Federal department or agency. VA will also make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. The veteran, however, must provide enough information so that VA can request identified records. At the March 2000 VA examination, the veteran reported chiropractic treatment. The veteran has not provided an authorization for release of private chiropractic records and has not identified additional records that need to be obtained. In keeping with the duty to assist, the veteran was provided VA examinations in March 2000 and October 2000. In June 2002, the veteran's representative appears to suggest that the veteran is entitled to another examination because the examiner did not affirmatively state that he reviewed the claims file. The Board has reviewed the examinations of record and considers them adequate for rating purposes. As such, further examination is not necessary. Accordingly, the Board finds that VA has satisfied its duty to notify and to assist and that under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The veteran was originally granted service connection for a low back disability, characterized as L3-L4, L4-L5, and L5-S1 bulging discs, in April 2000 and assigned a 20 percent evaluation effective January 18, 2000. The veteran contends that the current evaluation does not adequately reflect the severity of his disability. The veteran underwent a VA examination in March 2000. Review of medical records revealed that the veteran injured his low back in January and June 1999 after parachute jumps. In February 1999 he injured his back while picking up a heavy tent. In July 1999 he fell during a road march and reinjured his back. The veteran reported a moderate left low back pain with occasional radiation to the anterior left knee. There is no bowel or bladder dysfunction. He takes Aleve with good pain control during the day. After discharge he received chiropractic treatment to relieve the pain temporarily. Precipitating factors include driving a car, bending, or sitting a lot. During the last year he has had severe bouts of low back pain on 7 to 8 occasions. He takes Aleve and will rest for 6 hours. He does not need to use crutches, a brace, or a cane to walk. He is currently unemployed and has difficulty doing construction work and running. On physical examination, forward flexion was to 95 degrees; backward extension and rotations to 35 degrees; and lateral flexion to 40 degrees. There was no objective evidence of painful motion on all movements of the lumbar spine and there was no lumbar paravertebral muscle spasm. There was objective evidence of mild weakness of the left ankle dorsiflexor muscles, extensor hallux longus, and tibialis anterior with muscle strength graded 4/5. There was also mild weakness of the left ankle plantar flexor muscle, gastrocnemius with muscle strength graded 4/5. There was no tenderness to palpation on lumbar paravertebral muscles. There were no postural abnormalities of the back or fixed deformities. There was diminished pinprick and smooth sensation on left L5-S1 dermatomes of the foot. There was no muscle atrophy of the lower extremities but ankle jerks were noted to be "almost absent." Knee jerks were plus 2 bilateral and symmetric. Straight leg raising was negative bilaterally. X-ray examination of the lumbosacral spine was normal. MRI in April 2000 revealed 1) suspected lumbar paravertebral muscle spasm; and 2) minimal concentric disc bulging from L3 to S1 level. The veteran underwent another VA examination in October 2000. Range of motion was measured as follows: flexion to 85 degrees; extension to 10 degrees; lateral bending right and left to 20 degrees; and rotation to right and left 40 degrees. It was noted that pain began at flexion to 85 degrees. There was tenderness to palpation at the lumbosacral paravertebral muscles. No postural abnormalities or fixed deformities were noted. Regarding neurological abnormalities, muscle strength in the left extensor hallucis longus was reported as 2.5/5. Right extensor hallucis longus was 5/5. All the rest of the muscles tested on the right and left lower extremities were 5/5, including iliopsoas, hamstrings, quadriceps, gluteus maximus, tibialis anterior, gastroc-soleus and peroneus brevis bilaterally. Deep tendon reflexes were +3 patellar and +2 Achilles bilaterally. Straight leg raising and slump test were both negative. The veteran underwent an electrodiagnostic examination in October 2000, which revealed findings compatible with an old left L5 radiculopathy. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 1991). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2002); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which evaluation to apply to the veteran's disability, 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 (2002). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 (2002), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). In this case, however, because the appeal ensues from the veteran's disagreement with the evaluation assigned in connection with the original grant of service connection, the potential for the assignment of separate, or "staged" ratings for separate periods of time, based on the facts found, must be considered. Fenderson v. West, 12 Vet. App. 119 (1999). The RO evaluated the veteran's disability pursuant to Diagnostic Code 5293. Under the rating criteria in effect prior to September 23, 2002, intervertebral disc syndrome was evaluated as follows: postoperative, cured (0 percent); mild (10 percent); moderate; recurring attacks (20 percent); severe; recurring attacks with intermittent relief (40 percent); and pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief (60 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). The regulations regarding intervertebral disc syndrome were revised effective September 23, 2002. Under the revised regulations, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under Sec. 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent); with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); and with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months (10 percent). 67 Fed. Reg. 54,345, 54,349 (Aug. 22, 2002) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5293). Note (1) provides that for purposes of evaluations under 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Id. Note (2) provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. Note (3) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Pursuant to Karnas v. Derwinski, 1 Vet. App. 308 (1991), where a law or regulation changes after the claim has been filed or reopened before administrative or judicial review has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. Therefore, the Board must evaluate the veteran's claim for an increased rating from September 23, 2002, under both the former criteria and the current regulations in order to ascertain which version is most favorable to his claim, if indeed one is more favorable than the other. The revised criteria, however, may not be applied earlier than the effective date of the revised regulations. 38 U.S.C.A. § 5110(g) (West 1991) (where compensation is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue); see VAOPGCPREC 3-2000 (2000). Thus, the revised criteria under Diagnostic Code 5293 are not applicable prior to September 23, 2002, the effective date of revision. Other potentially applicable provisions include Diagnostic Codes 5285 (residuals of vertebra fracture), 5286 (complete ankylosis of the spine), 5289 (ankylosis of the lumbar spine), 5292 (limitation of motion of the lumbar spine), and 5295 (lumbosacral strain). There is no evidence of a vertebral fracture or ankylosis, and the veteran has not been diagnosed with lumbosacral strain on recent examination. Therefore, Diagnostic Codes 5285, 5286, 5289, and 5295 are not for application. Limitation of motion of the lumbar spine is evaluated as follows: slight (10 percent); moderate (20 percent); and severe (40 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). The words "slight," "moderate" and "severe" are not defined in the rating 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." See 38 C.F.R. § 4.6 (2002). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of a functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under §§ 4.40 and 4.45. See Johnson v. Brown, 9 Vet. App. 7 (1996) and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In a precedent opinion, the VA General Counsel has held that disabilities rated under 38 C.F.R. § 4.71a, Diagnostic Code 5293, involved limitation of motion, which warranted consideration based on functional loss due to pain on use or due to flare-ups. VAOPGCPREC 36-97. Functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40 (2002). Under the former Diagnostic Code 5293, the Board finds that the symptoms associated with the veteran's low back disability approximate no more than moderate intervertebral disc syndrome with recurring attacks. Objectively, there is electrodiagnostic evidence of an old left L5 radiculopathy and MRI evidence of suspected muscle spasms and bulging discs at various levels. There is also evidence of some muscle weakness. There is no evidence of muscle atrophy or bladder or bowel dysfunction. Straight leg raising is negative bilaterally. The veteran complains of moderate left low back pain with occasional radiation to the left knee. There are no complaints of constant pain and there is no objective evidence of ongoing treatment. The veteran takes Aleve with reportedly good pain control. There is no evidence of severe intervertebral disc syndrome, recurring attacks, with intermittent relief. As such, an evaluation in excess of 20 percent under Diagnostic Code 5293 is not warranted. Similarly, an evaluation in excess of 20 percent is not warranted under Diagnostic Code 5292. Examination in October 2000 indicates that flexion was limited to 85 degrees; extension to 10 degrees; lateral bending to 20 degrees and rotation to 40 degrees. The Board finds that this approximates no more than slight limitation of motion of the lumbar spine. In terms of functional limitations, the veteran complains of pain and there is evidence of painful motion and tenderness on recent examination. However, other objective findings are mostly negative, with the exception of some muscle weakness. The Board does not find adequate pathology to support an evaluation in excess of 20 percent. See DeLuca, supra. Under the revised Diagnostic Code 5293, intervertebral disc syndrome can be evaluated based either on the duration of incapacitating episodes or a combination of the chronic orthopedic and neurological manifestations. On review of the claims folder, there is no objective evidence of incapacitating episodes as defined by Note 1. As such, an evaluation in excess of 20 percent is not warranted based on the frequency of incapacitating episodes. In terms of orthopedic manifestations, the Board has previously discussed the applicable orthopedic codes and determined that the veteran suffers from slight limitation of motion of the lumbar spine. Under Diagnostic Code 5292, slight limitation of motion warrants a 10 percent evaluation. VA examinations indicate neurologic abnormalities associated with the veteran's bulging discs and L5 radiculopathy. Accordingly, the Board will evaluate the veteran's chronic neurological manifestations pursuant to Diagnostic Code 8520. Under this provision, 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 (very rarely) lost) warrants an 80 percent evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2002). Incomplete paralysis of the sciatic nerve is evaluated as follows: severe, with marked muscular atrophy (60 percent); moderately severe (40 percent); moderate (20 percent); and mild (10 percent). Id. On examination in March 2000, there was objective evidence of mild weakness of in various muscle groups of the left lower extremity and also of diminished pinprick and sensation on left L5-S1 dermatomes of the foot. On examination in October 2000, muscle strength in the left extensor hallucis longus was 2.5/5. All the rest of the muscles in the right and left lower extremities were 5/5. The Board finds that these findings approximate no more than moderate incomplete paralysis of the sciatic nerve and a 20 percent evaluation is warranted under Diagnostic Code 8520. The 10 percent evaluation for orthopedic manifestations (slight limitation of motion of the lumbar spine) and 20 percent evaluation for chronic neurologic manifestations (moderate incomplete paralysis of the sciatic nerve) combine to a 30 percent evaluation under 38 C.F.R. § 4.25 (2002). Accordingly, a 30 percent evaluation is warranted effective September 23, 2002, under the revised Diagnostic Code 5293. The Board has considered whether the veteran is entitled to a staged rating. See Fenderson, supra. On review of the evidence, the Board finds that at no time during the appeal period, prior to the regulatory change discussed above, was an evaluation in excess of 20 percent warranted. Finally, to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2001). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, the evidence of record does not indicate the veteran is frequently hospitalized for his low back disability and there is no indication that it has a marked interference with employment beyond that contemplated in the schedular standards. Having reviewed the record with these mandates in mind, the Board finds no basis for further action. VAOPGCPREC 6-96 (1996). ORDER An initial evaluation in excess of 20 percent for a low back disability, characterized as L3-L4, L4-L5, and L5-S1 bulging discs, is denied. For the period beginning September 23, 2002, a 30 percent evaluation and no more for a low back disability, characterized as L3-L4, L4-L5, and L5-S1 bulging discs, is granted. THOMAS J. DANNAHER Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.