Citation Nr: 1010780 Decision Date: 03/22/10 Archive Date: 03/31/10 DOCKET NO. 93-01 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased rating for service-connected spondylolisthesis, lumbosacral spine, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1966 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, in which the RO denied the Veteran's claim of entitlement to an increased rating for service- connected spondylolisthesis, lumbosacral spine (back disability) evaluated as 10 percent disabling. The Veteran appealed, and in January 1994, the Board denied the claim. The Veteran appealed the Board's January 1994 decision to the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims, hereinafter "the Court"). In July 1995, the Court granted a Joint Motion, vacating the January 1994 Board decision and remanding the claim to the Board for compliance with the Joint Motion directives. In December 1995, the Board remanded the claim for additional development. In October 1998, the RO partially granted the Veteran's claim by increasing his service connected back disability rating from 10 percent to 20 percent. Since ratings higher than 20 percent are available, and the Veteran is presumed to be seeking the maximum benefits, his initial increased rating claim remained on appeal. See AB v. Brown, 6 Vet., App. 35 (1993). The Board remanded the claim February 2001 and most recently in July 2004 for additional development. The necessary development actions have been completed and the case is ready for appellate review on the merits. The issue of service connection for a bowel disorder as secondary to the Veteran's back disability has been raised by the March 2008 VA/QTC examination report, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's lumbar spondylolisthesis is not productive of the following: limitation of motion in the forward flexion of less than 30 degrees, incapacitating episodes of back pain necessitating physician prescribed bed rest, or severe limitation of motion of the spine. CONCLUSION OF LAW The criteria for the establishment of an initial rating in excess of 20 percent for lumbar spondylolisthesis are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b), 4.1-4.7, 4.71a Diagnostic Codes 5285-5295 (2002); 38 C.F.R. §§ 3.321(b), 4.1-4.7, 4.71a Diagnostic Codes 5243 (2009); DeLuca v. Brown, 8 Vet. App. 202 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION Laws and regulations Disability ratings are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 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 entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, rating of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). During the pendency of this appeal, however, the criteria for evaluating spine disorders have been substantially revised. The Board will consider all potentially applicable criteria. Under the prior criteria (in effect prior to September 26, 2003) of 38 C.F.R. § 4.71a, Diagnostic Code 5292, a 20 percent rating was warranted for moderate limitation of motion, while a 40 percent rating contemplated severe limitation of motion. Also, under the prior criteria of Diagnostic Code 5295, addressing lumbosacral strain, a 20 percent rating was warranted for muscle spasm on extreme forward bending and loss of lateral spine motion, unilateral, in the standing position. A 40 percent rating was applicable for severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Under Diagnostic Code 5293, which pertains to intervertebral disc syndrome, prior to September 23, 2002, postoperative, cured intervertebral disc syndrome is noncompensable. Mild intervertebral disc syndrome warrants a 10 percent rating. For moderate intervertebral disc syndrome with recurring attacks, a 20 percent rating is merited, and severe disease with recurring attacks, with intermittent relief warrants a 40 percent rating. 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 the site of the diseased disc, with little intermittent relief, warrants a 60 percent rating. 38 C.F.R. Part 4, Code 5293 (2001). The prior criteria also included provisions regarding spinal fractures (Diagnostic Code 5285) and ankylosis (Diagnostic Code 5286 and 5289). These disorders are not present in the instant case. The criteria for rating back disabilities was initially amended on September 23, 2002, under 38 C.F.R. § 4.71a, Diagnostic Code 5243 for intervertebral disc disease syndrome based upon incapacitating episodes. The amended Diagnostic Code provided a 20 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent rating is assigned in cases of incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past twelve months. A 60 percent rating contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. Effective September 26, 2003 the remaining diagnostic criteria for evaluating spine disorders were amended, and included the new criteria for evaluating intervertebral disc syndrome which went into effect September 22, 2002. 68 Fed. Reg. 51454-51458 (August 27, 2003). The amended diagnostic criteria rates diseases and injuries of the spine under a General Rating Formula. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2009). The General Rating Formula provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is in order for forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent rating contemplates unfavorable ankylosis of the entire spine. Additionally, the Board must consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate rating for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court interpreted these regulations in DeLuca v. Brown, 8 Vet. App. 202 (1995), and held that all complaints of pain, fatigability, etc., shall be considered when put forth by a Veteran. In accordance, the Veteran's reports of pain have been considered in conjunction with the Board's review of the limitation of motion diagnostic codes. Evidence The Veteran was scheduled for a VA examination in June 1991. The examiner noted that a partial examination was conducted, as the Veteran was intoxicated. The Veteran complained of back and left leg pain. Upon physical examination, his forward flexion motion was limited to 90 degrees. X-rays from April 1990 were interpreted as showing spondylolysis par interarticularis L5 with spondylolisthesis of L5 on S1 and degenerative disc disease. The examiner diagnosed spondylolysis L5 and degenerative joint disease. It is notable that a CT scan of the lumbosacral spine obtained in April 1990 was interpreted as showing degenerative changes with Grade I spondylolisthesis at the level of the L5-S1 interspace, and no evidence of herniated nucleus pulposis. A CT scan obtained in February 1996 was interpreted as still showing Grade I spondylolisthesis, but with significant progression since September 1993. There was also evidence of diffuse disc herniation at L5-SI, as well as other findings. VA treatment records from the 1990s reflected continued treatment for back pain. In September 1997, the Veteran was afforded a VA neurology examination. He again complained of back pain and radiating pain to both lower extremities. The Veteran reported being limited in many daily activities due to the pain. He did not report any additional symptoms such as bowel disorders, bladder disorders, or numbness. During physical examination, the examiner noted mild paraspinal muscle spasm and noted a weak femoral pulse weaker on the left than the right. The examiner also noted a past EMG result showed mixed sensory neuropathy, but this finding could not be substantiated upon present examination. The examiner diagnosed vascular claudication and opined that the Veteran's symptoms were related to vascular disorders, rather than a neurological disorder. At the same time as the VA neurology examination, the Veteran also underwent a VA spine examination. He reported intense back pain impairing him from standing, walking, or sitting. Upon physical examination, forward flexion was limited to 45 degrees. Neurological examination did not show any abnormalities. The examiner noted weak pulses and recommended a vascular clinic consultation. He diagnosed spondylolisthesis at L5-S1 with claudication. A VA vascular examination performed in September 1997 revealed weak femoral and popliteal pulses, and non-palpable pedal pulses. There was a weak Doppler signal, however, for the pedal pulses. Venous filling time was described as normal. The diagnoses were probable aortic-iliac disease with occlusion resulting in poor vascular flow to both extremities; and arterial pulses (femoral, popliteal, and pedal) weak to absent, with weak signal by Doppler on the pedal pulses. The examiner recommended a vascular study to confirm this vascular status. In July 1999, the examiner authoring the September 1997 neurology VA examination reexamined the Veteran. The Veteran continued to experience great difficulty with daily living activities due to severe back pain. On physical examination, straight leg testing returned positive on the left at 80 degrees and equivocal on the right at 80 degrees. Pin, position, and vibration testing were intact. The Veteran had slight motor problems with his great left toe. Lateral bends were performed "well." The examiner diagnosed L5 spondylolysis and L5 herniated nucleus polyposis with great toe dorsiflexor weakness. The next VA examination took place in May 2001. The Veteran reported right sided radiculopathy in addition to low back pain; the radicular pain usually occurred at night, resulting in insomnia. The examiner reviewed recent X-rays and a CT scan report. Upon physical examination, the examiner observed a slight limp. He measured forward flexion to 60 degrees. He diagnosed spondylolisthesis. The examiner noted decreased ability to perform activities of daily living and spine movement. Private treatment records, dated 2001 and 2002, from the Holyoke Soldier's Home referred to complaints of back pain. In October 2003, the Veteran underwent another VA spine examination. He continued to report intense back pain. During physical examination, the Veteran's forward flexion motion was limited to 60 degrees. He had normal strength in his lower extremities and symmetric muscle bulk. However, the examiner found very poor flexibility for the Veteran's hamstrings, gluteus and lumbar muscle. X-rays revealed grade 1 spondylolisthesis at L5-S1. The examiner diagnosed low back pain, but concluded that there were no neurological symptoms related to spondylolisthesis. Social Security Administration (SSA) records, received by VA in July 2004, reflected that the Veteran was in receipt of SSA disability benefits for degenerative disc disease. SSA made the determination in February 2003, but found that the effective date of the Veteran's disability was in October 1990. The Veteran underwent his most recent VA/QTC spine examination in March 2008. He reported having low back pain which radiated for many years. More recently, he began experiencing bowel disorders. Physical findings included a mild antalgic gait favoring the right and forward flexion limited to 90 degrees. The physician diagnosed spondylolisthesis, grade I. He commented that the Veteran's overall disability represented a combination of vascular claudication from diabetes and lumbar spondylolisthesis. He also opined that the Veteran was capable of "light duty" activities. A VA/QTC examination report from April 2008 is also of record. Physical examination showed full motor strength for both lower extremities. Deep tendon reflexes were symmetrical. However, the examiner found slight diminished response to pinprick and vibration sense over both feet. He diagnosed lumbar sprain with bilateral radiculopathy, spondylolisthesis with history of degenerative disc disease, and parethesia symptoms from diabetes. Analysis In a July 1969 rating decision, service connection was granted for spondylolisthesis of the lumbosacral spine, and a 10 percent disability evaluation was assigned, effective from December 9, 1968, using Diagnostic Code 5299-5295. As noted in the INTRODUCTION, a 20 percent rating was assigned in an October 1998 rating decision. This evaluation was effective from April 23, 1991, using Diagnostic Code 5295-5299, and is the current disability evaluation As set forth above, ratings in excess of 20 percent under the current, amended rating criteria are limited. The medical evidence does not show the amount of limited motion in forward flexion that would support a higher rating using the General Rating Formula. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Also, the record does not show that bed rest for the duration required for a higher rating using the Formula for Rating Intervertebral Disc Syndrome was recommended by a physician for back pain treatment. Although the evidence shows that spondylolisthesis results in limited motion, the Board declines to classify it as a "severe" level as contemplated by criteria for Diagnostic Code 5292. The Veteran's back disability showed the greatest limitation of motion at the September 1997 VA examination, when his forward flexion was limited to 45 degrees. However, more recent VA examination reports showed limitation of flexion of 60 degrees and of 90 degrees. See VA examination report from October 2003 and from March 2008. Based on the measurements made through the appeals period, the Board does not find that the record shows a severe limitation of motion under Diagnostic Code 5292 (2002). Similarly, the evidence does not show that the Veteran's back disability meets the criteria for Diagnostic Code 5295. The medical evidence does not support a characterization of the Veteran's spine as wholly listing, having Goldthwaite's sign, exhibiting a marked limitation in forward flexion motion or loss of lateral motion. See id. The Board has carefully considered the medical and lay evidence of record. However, it does show that the criteria for a rating in excess of 20 percent have been met at anytime during the pendency of the appeal under either the pre-amend or amended criteria for a rating back disabilities. 38 C.F.R. § 4.71a, Diagnostic Codes 5285-5295 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2009); DeLuca, supra. The claim is denied. The Board acknowledges that the Veteran has experienced pain radiating to his lower extremities for many years. Nevertheless, the record shows that the complaints of radiating pain to the lower extremities are encompassed by the orthopedic manifestations. If VA were to separately rate the radiating pain as a neurologic manifestation, this rating would violate the rule against pyramiding. 38 C.F.R. § 4.14. Both the pre-amended and amended diagnostic criteria for the spine, Diagnostic Codes 5243 and 5295, include consideration of radiating pain, which encompasses radiculopathy. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (2009); 38 C.F.R. § 4.71a, Diagnostic Code 5295. Thus, the Board cannot assign a separate rating for radiculopathy. See id; See VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997); and VAOPGCPREC 9-98 (Aug. 14, 1998), 63 Fed. Reg. 56,704 (1998); see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994), to the effect that a separate rating may be granted when "none of the symptomatology . . . is duplicative of or overlapping with the symptomatology" of other conditions, and where the "symptomatology is distinct and separate . . . ." (Emphasis by the Court.). The record shows that the Veteran is unemployable by way of his back disability, and the Veteran filed a claim for total disability based upon individual unemployability (TDIU). The RO denied the Veteran's claim in an April 2004 RO decision. The Veteran did not appeal the denial, nor has he submitted any additional statements or evidence regarding any change in his employment capacity. Thus, the issue of TDIU is not for present consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, the Board has considered whether there is evidence showing that the Veteran's service-connected back disability should be referred for assignment of an extraschedular rating. The record shows that the Veteran's low back disability has interfered with his employment status, as reflect by his receipt of SSA disability benefits for nearly 20 years. However, the physician conducting the most recent VA/QTC examination in March 2008 opined that the Veteran was capable of "light duty" activities and that the Veteran's overall disability picture is significantly impacted by non- service connected vascular disorders. Additionally, there is also no indication that this disability has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. In the absence of an unusual disability picture such as one involving marked interference with employment or frequent hospitalization, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Vet. App. 111 (2008). Duty to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353- 23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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; and (3) that the claimant is expected to provide. In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in July 2003. While this letter was furnished after the issuance of the appealed October 1991 rating decision, the appeal was subsequently readjudicated in a Supplemental Statements of the Case issued in October 2004, August 2005, and October 2009. This course of corrective action fulfills VA's notice requirements. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Veteran was not notified about how VA assigns disability ratings and effective dates for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Since the issue in this case (entitlement to assignment of a higher initial rating) is a downstream issue from that of service connection (for which a notice letter was duly sent in July 2003), another notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the Court has also determined that the statutory scheme does not require another notice letter in a case such as this where the Veteran was furnished proper notice with regard to the claim of service connection itself. See Dingess, supra. As such, the Board finds that the RO fulfilled its duty to notify. VA is responsible for completing any additional actions necessary to comply with previous remands by the Court or the Board. The Court has held that a claimant has a right to full compliance with prior remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Board in July 2004 remanded the claim to obtain SSA records and private medical records. These records have been associated with the claims file, and the RO has readjudicated the claim after receipt of these records. The Board finds that the remand directives from the July 2004 remand have been completed. VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the back disability described by the Veteran. Additionally, the Veteran was afforded multiple VA examinations. These VA examinations were fully adequate for the purposes of adjudication as they were conducted by qualified healthcare providers based upon review of the records, interviews with the Veteran, and clinical findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. ORDER A rating in excess of 20 percent for a service connected spondylolisthesis, lumbosacral spine, is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs