Citation Nr: 0606980 Decision Date: 03/10/06 Archive Date: 03/23/06 DOCKET NO. 04-12 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating for post-operative residuals of degenerative disc disease of the lumbar spine at L4-L5 with right foot drop due to nerve injury, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.C. Peltzer, Counsel INTRODUCTION The veteran served on active duty from June 1976 to May 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in Montgomery, Alabama. The veteran perfected an appeal for a higher disability rating. A hearing was held before the undersigned Veterans Law Judge by videoconference in January 2006. FINDINGS OF FACT 1. All the evidence requisite for an equitable disposition of this claim has been developed and obtained, and all due process concerns have been addressed. 2. The veteran's low back disability is not manifested by unfavorable ankylosis or incapacitating episodes totaling at least 6 weeks. 3. The veteran's back disability is productive of severe limitation of motion, but more than moderately severe incomplete paralysis of the sciatic nerve is not shown. CONCLUSION OF LAW The criteria for a combined 60 percent disability evaluation (separate 40 percent ratings for her chronic orthopedic and neurologic manifestations) for post-operative residuals of degenerative disc disease of the lumbar spine at L4-L5 with right foot drop due to nerve injury are met. 38 U.S.C.A. §§ 110, 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.25, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2005); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293 (2002), 5243 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection was established for post-operative residuals of herniated nucleus pulposus at L4-L5 with right foot drop due to a nerve injury in a June 1983 rating decision. The veteran had chronic pain, right leg weakness and numbness, slight limitation of motion of the lumbar spine, and diminished reflexes of the right lower extremity with absent reflexes of the right knee. A 40 percent disability rating was assigned based on moderately severe incomplete paralysis of the sciatic nerve. In 1993 the veteran had surgery for her service-connected disability. However, her right foot drop did not improve. See March 1996 private medical record. The veteran filed an increased rating claim in March 2003. In evaluating service- connected disabilities, the Board looks to functional impairment. The Board attempts to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (2005). The regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). While the evaluation of a service-connected disability requires a review of the appellant's medical history with regard to that disorder, 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. Id.; 38 C.F.R. §§ 4.1, 4.2 (2005). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2005). The determination of the merits of the claim must be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that evidence supporting a claim or being in relative equipoise is more than evidence that merely suggests a possible outcome. Instead, there must be at least an approximate balance of positive and negative evidence for the veteran to prevail. Id. at 56. Disabilities of the thoracic and lumbar spine are evaluated in accordance with VA's Schedule for Rating Disabilities, set out at 38 C.F.R. part 4. In August 2003, amendments were made to the criteria used in rating disabilities of the spine, to include disabilities of the thoracolumbar spine, effective from September 26, 2003. See Schedule for Rating Disabilities; The Spine, 68 Fed. Reg. 51,454 (Aug. 27, 2003). The Board will evaluate the veteran's claim under the criteria in effect prior to, and since September 2003. The effective date of any rating assigned under the revised schedular criteria may not be earlier than the effective date of that change; the Board must apply only the earlier version of the regulation for the period prior to the effective date of change. See VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110(g) (West 2002) (where compensation is awarded 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). The prior schedular criteria for rating intervertebral disc syndrome provide that preoperative or postoperative intervertebral disc syndrome is to be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 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. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). With regard to the first method of evaluation (total duration of incapacitating episodes over the past 12 months), the criteria provide that a 10 percent evaluation is warranted if intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks; and a 60 percent rating is warranted if the total duration is at least six weeks. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). The prior schedule does not provide for an evaluation higher than 60 percent. For purposes of these evaluations, 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. The term "chronic orthopedic and neurologic manifestations" were defined as "orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so". 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003), Note (1). Here, the evidence does not show that the veteran has been prescribed bed rest in connection with her lumbar spine disability. In fact, the January 2006 hearing transcript shows that the veteran indicated that while laying down relieved her pain, her treating physician felt prescribed bed rest would be counter-productive for her disability. As such, a higher disability rating based on incapacitating episodes of intervertebral disc syndrome is not warranted in the instant case. Whether a higher disability rating is warranted based on separate evaluations of her chronic orthopedic and neurologic manifestations must be considered. As indicated above, the veteran's current 40 percent disability rating was assigned based on her incomplete paralysis of the sciatic nerve. This rating has been in effect since May 12, 1983, and it is protected by law. 38 U.S.C.A. § 110 (West 1991). The question now is whether an additional rating can be added. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 U.S.C.A. § 4.124a, Diagnostic Code 8520 (2005). A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. The evidence fails to reveal incomplete paralysis that is severe in degree. Examination of the right lower extremity has consistently demonstrated right foot drop, normal ankle reflexes, and absent right knee deep tendon reflexes. The veteran wears a prosthesis due to the foot drop. The evidence reveals no organic changes, such as muscle atrophy, trophic changes, etc., which would warrant a higher rating for neurologic manifestation of right lower extremity sciatica. Under the prior regulations, limitation of motion of the lumbar spine was rated as 10 percent disabling for slight limitation of motion, 20 percent disabling for moderate limitation of motion, and 40 percent disabling for severe limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). However, an evaluation of any musculoskeletal disability must include consideration of the veteran's ability to engage in ordinary activities, including employment, and of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. See 38 C.F.R. §§ 4.10, 4.40 (2005); DeLuca v. Brown, 8 Vet. App. 202 (1995). The private medical evidence refers to a severe low back treated with pain medication and muscle relaxants for muscle spasms. When the veteran had an exacerbation of her back pain, she was barely able to walk. The May 2003 VA examination report reflects that the veteran had flexion to 40 degrees but she could not straighten her back so the examiner indicated she had +10 degrees extension. The examiner referred to marked limitation of motion. The examiner noted in April 2004 that the veteran had no change in her condition. The May 2005 VA examination report reflects that the veteran had fractured her right fibula and her lower leg was in a cast and she was using a cane. The examiner referred to functional loss due to pain and decreased mobility that was significant. The report shows that upon examination, she had lateral flexion to the right to 30 degrees and to 18 degrees on the left. Her range of rotation was normal and she had no further limitation of motion due to weakness, fatigability, or incoordination following repetitive use. The January 2006 transcript shows that the veteran testified that her weakness affected her mobility, she could not move fast, and she had to take frequent breaks when driving to stretch and walk around. Based on the ranges of motion and decreased function, the veteran's limitation of function approximates severe limitation of motion of the lumbar spine such that a 40 percent disability rating (the maximum) is warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). Under the prior criteria, the veteran could be rated as 40 percent disabled for her chronic orthopedic manifestation of limitation of lumbar spine motion with a separate 40 percent rating for her chronic neurologic manifestation right lower extremity sciatica. After combining the 40 and 40 percent ratings under 38 C.F.R. § 4.25, the veteran would is entitled to a combined 60 percent schedular rating by separately rating her chronic orthopedic and neurologic disabilities. Although this is obviously a favorable result, the Board must still consider whether an even higher rating is warranted under the provisions of the rating schedule that became effective in September 2003. At that time, the criteria did not meaningfully change the way in which intervertebral disc syndrome was evaluated. It still requires an evaluation based on incapacitating episodes, and it permits an evaluation based on orthopedic impairment and a separate evaluation for associated objective neurologic abnormalities. A 60 percent rating, however, is the highest rating based on incapacitating episodes, and to warrant a rating higher than 60 percent, either by combining orthopedic and neurologic impairment, or by virtue of orthopedic impairment alone, would require the presence of ankylosis, which has not been diagnosed. Therefore, the current regulations do not provide a basis for a higher evaluation. In short, under the prior and revised criteria the veteran's post-operative residuals of degenerative disc disease of the lumbar spine at L4-L5 with right foot drop due to nerve injury warrants a combined 60 percent disability rating, or separate 40 percent ratings for her chronic orthopedic and neurologic manifestations. Thus, to this extent, the appeal for a higher disability rating is granted. Finally, the Board has no reason to doubt that the veteran's service-connected spine back disability limits her efficiency in certain tasks. In fact, the veteran referred to many hours of missed work due to her disability. However, the disability rating itself is recognition that industrial capabilities are impaired and the evidence of record is not indicative of an exceptional or unusual disability picture and is not reflective of any factor that takes the veteran outside of the norm. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Accordingly, the Board finds that the veteran's disability picture does not warrant referral for the assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b) (2005). Duty to Notify and Assist When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must be provided prior to the adjudication appealed, and must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in her possession that pertains to the claim. Prior to initial adjudication of her claim, the veteran was notified by letter in May 2003 that evidence showing an increase in the severity of her service-connected disability was needed, the evidence already received, and informed her of the information necessary substantiate her claim that she was expected to provide and the evidence VA would seek. The letter requested that if she had access to treatment records, to submit copies to VA or to authorize VA to obtain evidence on her behalf. She was reminded that it was still her responsibility to support her claim with appropriate evidence. She was again notified by letter in November 2003 of the evidence necessary to substantiate her increased rating claim and of the evidence she was expected to provide and the evidence VA would seek, and asked to send the requested items to VA. Thus, the Board considers VA's notice requirements met. With respect to any defects in the veteran's notice, the veteran has been provided with every opportunity to submit evidence and argument in support of her claim and to respond to VA notices. The veteran has been notified of the evidence necessary to substantiate her claim and afforded the opportunity to either submit evidence or authorize VA to obtain evidence on her behalf. In fact, she has submitted her private medical records. Under these circumstances, the Board is satisfied that any notification error was harmless. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2005). The veteran has been afforded VA examinations in connection with this claim and the resulting reports are of record. Private medical evidence and a transcript of the January 2006 hearing has been associated with her claims file. The veteran has not authorized VA to obtain any additional evidence on her behalf. As such, the Board concludes that no further assistance to the veteran regarding development of evidence is required. See McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). ORDER A combined 60 percent disability rating (separate 40 percent ratings for her chronic orthopedic and neurologic manifestations), but no more, for post-operative residuals of degenerative disc disease of the lumbar spine at L4-L5 with right foot drop due to nerve injury is granted, subject to the laws and regulations governing the disbursement of VA benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs