Citation Nr: 0727678 Decision Date: 09/04/07 Archive Date: 09/14/07 DOCKET NO. 07-06 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to an initial disability rating in excess of 60 percent for degenerative disc disease of the lumbar spine with spinal stenosis and radiculopathy, claimed as a low back disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran had active service from March 1953 to March 1955 This matter is on appeal to the Board of Veterans' Appeals (Board) from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO granted service connection for degenerative disc disease of the lumbar spine with spinal stenosis and radiculopathy and assigned a 60 percent disability rating, effective August 23, 1999. The Board has jurisdiction to consider the veteran's possible entitlement to a TDIU rating in this appealed claim for an increased disability rating where the TDIU issue is raised by assertion or is reasonably indicated by the evidence, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). In July 2007, the Board granted the veteran's motion to advance the case on the Board's docket under the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2006). FINDINGS OF FACT 1. The veteran's degenerative disc disease of the lumbar spine with spinal stenosis and radiculopathy has not manifested in ankylosis of the entire spine. 2. The veteran's service-connected degenerative disc disease is manifested by marked limitation of motion, persistent pain, bowel and bladder incontinence, and moderate to severe effects on activities of daily living. 3. A 60 percent rating for the veteran's degenerative disc disease of the lumbar spine with spinal stenosis and radiculopathy disability was established on August 23, 1999, bringing the veteran's disability rating to 60 percent as of that date. 4. The veteran is unable to secure or follow a substantially gainful occupation, by reason of service-connected disability. CONCLUSIONS OF LAW 1. The criteria for assignment of an initial disability rating in excess of 60 percent for degenerative disc disease of the lumbar spine with spinal stenosis and radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999); 38 C.F.R. §§ 4.1, 4.40, 4.71a, Diagnostic Code 5243 (2006). 2. The criteria for a total disability rating based on individual unemployability are met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Disability Rating The veteran has appealed the RO's December 2005 grant of service connection for degenerative disc disease of the lumbar spine with spinal stenosis and radiculopathy and assignment of a 60 percent disability rating, effective August 23, 1999. In a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). During the course of this appeal, VA promulgated new regulations for the evaluation of intervertebral disc syndrome, 38 C.F.R. § 4.71a, Code 5243, 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 renumbered the diagnostic codes and created 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 5293 assigned a maximum 60 percent disability rating for pronounced intervertebral disc syndrome, or degenerative disc disease, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). As of September 2003, 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 noted above, 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The General Rating Formula for Diseases and Injuries of the Spine assigns a 100 percent evaluation for intervertebral disc syndrome which manifests in unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; or neurologic symptoms due to nerve root stretching. See Note 5 of the General Rating Formula. With regard to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a maximum 60 percent evaluation is assigned for 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 evaluation, 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2006). Of record are July 1999 and March 2000 letters from the veteran's private physician. Diagnostic studies revealed significant canal stenosis at L3, L4, and L5. Large spurs at L4 and L5 along with bilateral facet hypertrophic changes at L3 with canal stenosis and an anterior spur were also noted. Ligamentous calcification was observed at L4. The veteran's physician noted that he has severe leg and back pain, difficulty walking, stiffness, and sleep disturbance caused by pain. The veteran also demonstrated severe limitation of motion of the lumbar spine. The veteran's physician concluded he was permanently and totally disabled as a result of his back disability. The veteran underwent a VA spine examination in May 2005. He reported increasing pain in his back and in both lower extremities, left greater than right. The veteran stated he is unable to walk greater than fifty steps due to back pain and weakness in the lower extremities. He also reported diffuse numbness and tingling, as well as difficulty with bowel and bladder incontinence. The veteran reported requiring a wheelchair to travel distances greater than fifty feet. During the examination, the veteran was able to walk seventy five feet; however, the examiner noted that he walked with a slow, shuffling gait using two canes. On examination, the veteran rested in approximately 20 degrees of flexion in his lumbar spine. He was able to forward flex to 30 degrees, however, the examiner observed guarding and pain with flexion. Flexion was measured from 20 degrees to 30 degrees. The veteran was able to perform full extension. Rotation and side to side bending was minimal due to guarding with pain. The examiner noted diffuse tenderness to palpation about the veteran's lower lumbar spine and sacroiliac joints. In addition, the examiner noted globally decreased sensation to light touch, as well as pain and radicular symptoms with straight leg raise bilaterally. X-rays of the veteran's lumbar spine revealed diffuse degenerative changes with loss of disk height at multiple levels and most severe at L5-S1. The veteran's previous CT scans were shown to have a significant canal stenosis at L3, L4, and L5 as well as facet hypertrophy. The veteran reported severe pain at all times, although he did not note flare ups or incapacitating episodes. Pursuant to the former rating criteria, the veteran has been assigned the maximum 60 percent disability rating for pronounced intervertebral disc syndrome. With regard to the revised diagnostic criteria, the veteran does not have unfavorable ankylosis of the entire spine. In this case, there is no medical evidence establishing ankylosis of any portion of the veteran's spine at any time, and there are no symptoms indicative of unfavorable ankylosis. Therefore, the criteria for a 100 percent rating (in so much as it relates to ankylosis) are not met. Further, the evidence does not establish the occurrence of incapacitating episodes. A review of the veteran's VA and private treatment records reveals he has not been prescribed bed rest to treat his lumbar spine disability. In May 2005, the veteran denied the occurrence of incapacitating episodes. Further, he has already been assigned the maximum 60 percent disability rating available for intervertebral disc syndrome based on evaluation of incapacitating episodes. The Board concludes, therefore, that the criteria for a disability rating in excess of 60 percent for intervertebral disc syndrome are not met under either the former or the revised diagnostic criteria. Further, the evidence does not reveal manifestations of intervertebral disc syndrome warranting a rating higher than already granted for a specific period or "staged rating" at any time since the effective date of the claim. Fenderson, 12 Vet. App. 119, 126-27 (1999). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). There is no objective evidence of any symptoms due to service-connected degenerative disc disease of the lumbar spine with spinal stenosis and radiculopathy that are not contemplated by the rating criteria. Consequently, the Board concludes that referral of this case for consideration of the assignment of extraschedular ratings is not warranted. See Floyd v. Brown, 8 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Total Disability for Individual Unemployability (TDIU) The Board has jurisdiction to consider the veteran's possible entitlement to a TDIU in this appealed claim for a higher rating when the TDIU issue is raised by assertion or is reasonably indicated by the evidence, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). See also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). However, the question of a TDIU rating may be considered a component of an appealed increased rating claim only if the TDIU claim is based solely on the disability or disabilities that are the subject of the increased rating claims. VAOPGCPREC 6-96. Entitlement to a total disability rating for compensation based on unemployability of the individual (TDIU) requires the presence of an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006). The governing regulations provide that, to qualify for a TDIU, if there is only one service-connected disability, it must be rated at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. The Board notes that by rating decision dated December 2005 the veteran's service-connected degenerative disc disease of the lumbar spine with spinal stenosis and radiculopathy was evaluated as 60 percent disabling, effective August 23, 1999. A TDIU is an award of increased compensation. As with other claims for increases, a medical examination is required in conjunction with the claim. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995). The record reveals that during the appeal, the veteran underwent a May 2005 VA spine examination and a June 2005 VA heart examination. In May 2005 a VA examiner noted that the veteran walked with a slow, shuffling gait using two canes. The veteran was able to walk approximately seventy-five steps before experiencing leg pain. On examination, the veteran reported difficulty with bowel and bladder incontinence. In addition, he indicated his son assists him by getting his groceries and mail. The veteran stated he is unable to care for himself. The examiner noted the veteran had significant limitations and concluded he was markedly disabled due to his chronic pain. Also of record is a June 2005 VA heart examination. The veteran reported that for the past five years he has been restricted to a wheelchair and is only able to walk fifty feet before his legs begin to go numb and he begins to drag his left leg. Further, the veteran requires a wheelchair outside of his home. In this regard, he stated he is able to walk to his vehicle and drive; however, his son must push him in the wheelchair while shopping. The veteran stated he is unable to perform housework because he cannot bend over; however, he is able to cook for himself. Further, he reported requiring assistance to reach his back and below his knees while showering. The VA examiner noted that the veteran has significant disability and limitation of activity. The examiner concluded that this is primarily the result of the veteran's back condition. In addition, the veteran has submitted a March 2000 medical opinion statement from his private neurosurgeon. He concluded that the veteran's back disability has rendered him permanently and totally disabled. A review of the veteran's medical records reveals he is currently service-connected for degenerative disc disease of the lumbar spine with spinal stenosis and radiculopathy. A 60 percent disability rating has been assigned. The Board has carefully weighed the evidence of record and finds that there exists an approximate balance of evidence for and against the claim. In this regard, VA examination reports indicate the veteran is unable to walk more than fifty to seventy five feet without pain. Further, his ability to perform most activities of daily living has been moderately to severely limited. In addition, the veteran's private physician has concluded that he is permanently and totally disabled. The evidence indicates that the veteran's service-connected lumbar spine disability is of such severity that it is impossible for him to follow substantially gainful employment. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2005). Accordingly, in light of the evidence showing unemployability due to degenerative disc disease of the lumbar spine with spinal stenosis and radiculopathy, the Board concludes that a grant of TDIU is warranted under 38 C.F.R. § 4.16(a). 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 disability rating in correspondence dated April 2006 by informing him of the evidence he was required to submit, including any evidence in his possession, and the evidence that the RO would obtain on his behalf. The veteran received notice regarding the criteria for increased disability ratings and assignment of effective dates of disability benefits in April 2006. 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, private, and VA medical records, and provided the veteran a VA medical examination in May 2005. The veteran 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 this claim. With regard to the total disability rating based on unemployability of the individual, this decision effects a complete grant of the benefit sought on appeal. Therefore, appellate review of this claim may be conducted without prejudice to the veteran, Bernard v. Brown, 4 Vet. App. 384 (1993) and it is unnecessary to analyze the impact of recent changes to the regulations defining VA's duty to assist. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. ORDER 1. Entitlement to an initial disability rating in excess of 60 percent for degenerative disc disease of the lumbar spine with spinal stenosis and radiculopathy, claimed as a low back disability is denied. 2. Entitlement to a total disability rating based on individual employability is granted, subject to regulations applicable to the payment of monetary benefits. ____________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs