Citation Nr: 0712007 Decision Date: 04/25/07 Archive Date: 05/01/07 DOCKET NO. 04-39 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an increased disability rating for degenerative disc disease and degenerative joint disease, lumbosacral spine (low back disability), currently evaluated 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran had active service from December 1975 to December 1979. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, the RO granted a 40 percent disability rating for low back disability. FINDING OF FACT Resolving all reasonable doubt in the veteran's favor, the medical evidence shows that his low back disability is manifested by persistent symptoms compatible with sciatic neuropathy, including characteristic pain and muscle spasm, and severe limitation of lumbar spine motion, resulting in pronounced residual impairment. CONCLUSIONS OF LAW The criteria for a 60 percent disability for degenerative disc disease and degenerative joint disease, lumbosacral spine, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5292, 5293 (2002); 38 C.F.R. §§ 4.1, 4.40, 4.71a, Diagnostic Code 5243 (2006). REASONS AND BASES FOR FINDING AND CONCLUSIONS The veteran, a physician, contends that his low back disability is more severely disabling than reflected by the current 40 percent disability rating. In support, he maintains that he suffers from severely disabling intervertebral disc syndrome that is productive of nearly daily muscle spasms, incapacitating attacks several times per month, pronounced pain, and lower extremity radiculopathy. He also reports that the condition requires bed rest. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's lumbosacral spine disability is currently evaluated under Diagnostic Code 5243 for intervertebral disc syndrome. The veteran's disability was previously rated under Diagnostic Code 5292-5293 for limitation of motion of the lumbar spine and intervertebral disc syndrome. During the course of this appeal, VA promulgated new regulations for the evaluation of intervertebral disc syndrome, 38 C.F.R. § 4.71a, Code 5293, effective September 23, 2002. See 67 Fed. Reg. 54,345 (Aug. 22, 2002) (codified at 38 C.F.R. pt. 4). Later, VA promulgated new regulations for the evaluation of the remaining disabilities of the spine, effective September 26, 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003) (to be codified at 38 C.F.R. pt. 4). The amendments renumber the diagnostic codes and create a General Rating Formula for Diseases and Injuries of the Spine and a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (based on the 2002 amendments). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Therefore, as each set of amendments discussed above has a specified effective date without provision for retroactive application, neither set of amendments may be applied prior to its effective date. As of those effective dates, the Board must apply whichever version of the rating criteria is more favorable to the veteran. The Board notes that the RO addressed both sets of amendments. Therefore, the Board may also consider these amendments without first determining whether doing so will be prejudicial to the veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Under the former rating criteria, Diagnostic Code 5292 assigned a maximum 40 percent disability rating for severe limitation of motion of the lumbar spine. Diagnostic Code 5293 assigned a maximum 60 percent rating for pronounced intervertebral disc syndrome 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, and little intermittent relief. 38 C.F.R. § 4.71a (2002). Subsequent to the September 2003 amendments, the veteran's lumbosacral disability is evaluated under Diagnostic Code 5243. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The General Rating Formula for Diseases and Injuries of the Spine provides for a 100 percent evaluation for unfavorable ankylosis of the entire spine. A 50 percent evaluation is warranted with unfavorable ankylosis of the entire thoracolumbar spine. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, requires a 40 percent evaluation. Note 4 of the General Rating Formula for Diseases and Injuries of the Spine requires that each range of motion measurement be rounded to the nearest five degrees. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 60 percent evaluation for a disability with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note 1 provides that for purposes of 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2006). Factual Background The veteran underwent a VA spine examination in September 2002. He complained of fairly constant low back pain with once a week flare-ups in pain. He stated that he had intermittent sciatica originating near his left buttock and radiating to his left ankle. The veteran's gait was normal, with forward flexion to 90 degrees and backward extension to 20 degrees. Lateral flexion was 35 degrees bilaterally. Rotation was 35 degrees bilaterally. Straight leg raising was positive. The examiner estimated that the veteran lost 20 degrees of backward extension, 30 degrees of forward flexion, and 5 degrees of rotation with repetition and fatigue. The veteran has submitted a July 2003 opinion statement from his orthopedic specialist. The veteran's physician indicated that he had spondylolisthesis and degenerative facet arthropathy. The veteran sought treatment in November 2003 for pain in the low back and left leg. Tenderness to palpation was noted at the left L3-4, L4-5, and L5-S1 region. Radiographs revealed facet arthropathy and post-spinal decompression changes. The veteran was treated with a steroid injection. In an October 2004 statement, the veteran reported that his intervertebral disc syndrome was productive of considerable, almost daily muscle spasm, as well as chronic low back pain and resulting functional impairment. He stated that his low back disability required bed rest. The veteran also challenged the adequacy of the September 2002 VA examination, arguing that the examiner failed to evaluate him for that manifestation. The veteran sought treatment from his private physician in December 2004. He related a longstanding history of low back pain with spasms. The veteran reported a history of slight weakness in both legs due to pain, but denied leg symptoms at that time. On examination, tenderness of the lumbosacral spine was observed and the paravertebral muscles were taut. The veteran's prescriptions were refilled and his physician recommended a steroid injection. A December 2004 MRI revealed degenerative disc desiccation at L3-4, L4-5, and L5- S1. His physician's impression was degenerative disc disease primarily at L4-5 and again at L5-S1 with some mild to moderate disc bulging in these areas. The veteran underwent a VA spine examination in December 2004. The veteran reported having limited mobility due to pain in the lumbar area, with radiation to the left leg. He also reported having severe muscle spasm. His incapacitating episodes were managed with anti-inflammatory medication, pain medication, and muscle relaxing medication for flare-ups of pain and spasm. The veteran reported that his occupation as a physician requires him to stand ten hours, sit one hour, and drive one hour every day. He estimated that he has had a total of 72 days of incapacitation requiring bed rest due to his lumbosacral spine disability. He also reported missing 24 days of work. On examination, the veteran's gait was normal, although he moved slowly. The examiner noted scoliosis convex to the right with a flattening of the normal lumbar lordotic curve. Palpable spasm in the paraspinous muscles was observed. Forward flexion was measured to 20 degrees and backward extension to 10 degrees. The veteran was unable to tolerate repetitive motion and was essentially fixed in position by muscle spasms. Straight leg raising reproduced low back pain bilaterally but did not cause sciatica. In a February 2005 statement, the veteran reported that he reduced his medical practice by 20 percent due to his symptoms. Analysis Resolving all doubt in favor of the veteran, the Board concludes that the criteria for a 60 percent disability rating have been met. The medical evidence shows that the veteran has palpable muscle spasm and positive straight leg raising, with radiculopathy. Further, the veteran treats his low back disability with considerable pain medications. The Board finds that these findings most closely approximate a disability picture reflecting pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm with little intermittent relief, and thus a 60 percent rating under former Diagnostic Code 5293 is warranted. The Board notes that this finding is consistent with the revised criteria, as the veteran reported during the December 2004 VA examination a total of 72 days (at least six weeks) of incapacitating episodes requiring bed rest and treatment prescribed by a physician. Because the veteran is a practicing physician, he is competent to opine on matters requiring medical knowledge, such as whether his symptoms are incapacitating and require bed rest. His statements are bolstered by December 2004 private medical records, which show that he cancelled his clinic due to symptoms of his low back disability. Further, the December 2004 VA examination revealed both scoliosis and flattening of the normal lumbar lordotic curve, limitation of motion, and muscle spasm that prevented repetitive motion. The veteran has been assigned a 60 percent disability rating for intervertebral disc syndrome, the maximum disability rating available. Under the present circumstances, where the appellant is already receiving the maximum disability rating for limitation of motion, consideration of the provisions of DeLuca v. Brown, 8 Vet. App. 202 (1995) is not required. Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also VAOPGCPREC 36-97 (Dec. 12, 1997). The Board has also considered whether evaluation of the veteran's disability under any other former or revised diagnostic code could result in an evaluation higher than 60 percent. Pursuant to the former criteria, because the evidence is negative for any cord involvement or evidence of a fractured vertebra or ankylosis of the whole spine, there is no basis for a higher evaluation. Similarly, since the veteran does not have unfavorable ankylosis of the whole spine, an evaluation in excess of 60 percent is not warranted. Extraschedular Rating The Board must consider whether an extraschedular rating may be in order. The Board does not have the authority to assign, in the first instance, a higher rating on an extraschedular basis under 38 C.F.R. § 3.321(b)(1), and given the circumstances of this case, there is no basis to refer this matter to the designated VA officials for consideration of an extraschedular rating. Extraschedular ratings are limited to cases in which there is an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, such as to render impractical the application of the regular schedular rating standards. There is no evidence that the veteran's low back disability has resulted in frequent hospitalizations. Further, although he has reduced his workload, the veteran continues to be employed as physician in private practice. The Board acknowledges that during the December 2004 VA examination the veteran stated that his lumbosacral spine disability has caused him to be absent from work 24 days. Thus, it is clear that his disability has interfered with his employment. However, disability ratings are intended to compensate for reductions in earning capacity as a result of a specific disorder. In the absence of evidence documenting exceptional or unusual circumstances, the veteran's service-connected lumbosacral spine disability alone does not place him in a position different from other veterans with a 60 percent rating. Duty to Notify and Assist Duty to Notify: Regarding VA's duty to inform the veteran of the evidence needed to substantiate his claim, the RO notified him of the information and evidence needed to establish entitlement to an increased rating in correspondence dated in November 2004 and January 2005, which informed him of the evidence he was required to submit, including any evidence in his possession, and the evidence the RO would obtain on his behalf. It also notified him that he needed to submit evidence showing that his condition had worsened, and was followed by the RO's readjudication of the claim. The veteran has not received notice regarding the criteria for assignment of disability ratings and effective dates of disability benefits. However, the RO can rectify the lack of notice prior to assigning a disability rating and effective date for the benefits awarded by this decision. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Duty to Assist: Regarding the duty to assist the veteran in obtaining evidence in support of his claim, the RO obtained his service medical records, private treatment records, and furnished him with VA examinations in September 2002 and December 2004. He has not indicated the existence of any other evidence that is relevant to this appeal. The Board concludes that all relevant data has been obtained for determining the merits of this claim and that no reasonable possibility exists that any further assistance would aid him in substantiating his claim. ORDER A 60 percent disability rating for degenerative disc disease and degenerative joint disease, lumbosacral spine, is granted, subject to the laws and regulations pertaining to the payment of monetary benefits. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs