Citation Nr: 0316034 Decision Date: 07/15/03 Archive Date: 07/22/03 DOCKET NO. 99-22 009A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased evaluation for lumbosacral strain with degenerative disc disease at L4-5, L5-S1, postoperative herniation L4-5, currently evaluated as 20 percent disabling. ATTORNEY FOR THE BOARD Jason R. Davitian, Counsel INTRODUCTION The veteran served on active duty from September 1981 to May 1987. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO), which denied an evaluation in excess of 20 percent for service-connected lumbosacral strain under Diagnostic Code (DC) 5295, lumbosacral strain, and denied service connection for a neurological condition of the right leg as secondary to the service-connected lumbosacral strain. During the pendency of the appeal, a September 2002 rating decision identified the veteran's service-connected low back disability as lumbosacral strain with degenerative disc disease at L4-5, L5-S1, postoperative herniation L4-5. It assigned a temporary 100 percent evaluation effective November 25, 1997, under 38 C.F.R. § 4.30, followed by a 20 percent evaluation, effective March 1, 1998, under DC 5293, intervertebral disc syndrome. The rating decision also held that since the veteran's service-connected low back condition encompassed right leg neurological symptoms and manifestations, the issue of entitlement to secondary service connection was no longer an appealable issue. The RO noted that the claim for a rating in excess of 20 percent for the veteran's service-connected low back disability with right lower extremity pain remained on appeal and would be further addressed upon receipt of pending VA examination. Such was accomplished, the claim for a rating in excess of 20 percent remained denied, and the claim was certified to the Board for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's lumbosacral strain with degenerative disc disease at L4-5, L5-S1, postoperative herniation L4-5 results in some limitation of motion of the lumbar spine and right leg pain, and there are some arthritic changes upon X-ray; it is not productive of listing of the whole spine to the opposite side, abnormal mobility on forced motion, more than moderate recurring attacks of intervertebral disc syndrome with intermittent relief or incapacitating episodes having a total duration of at least four weeks during the past 12 months, more than moderate limitation of motion of the lumbar spine, or mild paralysis of either sciatic nerve. CONCLUSION OF LAW An evaluation in excess of 20 percent for lumbosacral strain with degenerative disc disease at L4-5, L5-S1, postoperative herniation L4-5, is not warranted. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5292, 5293 and 5295 (2002); 38 C.F.R. § 4.71a., Diagnostic Codes 5293 (effective September 23, 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION There was been a significant change in the law prior to the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (the VCAA), Pub. L. No. 106- 475, 114 Stat. 2096 (2000), codified at 38 U.S.C. §§ 5102, 5103, 5103A, 5107) (West 2002). VA has issued final regulations to implement these statutory changes. See C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). These new provisions redefine the obligations of VA with respect to the duty to assist and include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, the Board finds that VA's duties to the veteran under the VCAA have been fulfilled. 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. The Board concludes that the discussions in the June 1998 rating decision, the July 1999 statement of the case, the January 2003 supplemental statement of the case, and letters sent to the veteran by the RO, adequately informed him of the information and evidence needed to substantiate his claim and complied with VA's notification requirements. The rating decision and statement of the case set forth the laws and regulations pertaining to the merits of the veteran's increased evaluation claim, as well as the relevant criteria set forth at DC 5295. The January 2003 SSOC set forth the old and revised criteria set forth at DC 5293 and informed the veteran of the VCAA and its implementing regulations. In a March 2003 VCAA letter, the RO informed the veteran of the types of evidence that would establish entitlement to the benefit sought, and that VA would assist the veteran in obtaining government or private medical or employment records, provided that the veteran sufficiently identified the records sought and submitted releases as necessary. He was notified and aware of the evidence needed to substantiate his claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A. The RO has obtained the veteran's service medical records. In addition, the RO contacted the veteran by letter in December 1997 and asked him to identify all medical providers who treated him for the claimed disability. The RO has obtained evidence from each of the three private sources that the veteran identified in his January 1998 response. The veteran did not identify VA as a treatment provider. In November 1998 correspondence on the veteran's behalf, a VA social worker indicated that the veteran was receiving VA treatment for unspecified conditions. However, as the veteran did not respond to a March 2003 query asking him to identify all medical providers who had treated him for the claimed disability, the Board concludes that there are no outstanding additional treatment records, whether VA or private. The veteran has been provided with a VA examination that is adequate for rating purposes. As to any duty to provide an examination, the Board notes that the veteran was provided a VA examination in October 2002. Under this circumstance, there is no duty to provide an examination or opinion. Id.; see also Wells v. Principi, No. 02-7404 (Fed. Cir. April 29, 2003). Factual Background The veteran continues to maintain that the current 20 percent evaluation assigned for his low back disability does not adequately reflect the severity of that disability. He contends that he has low back and right leg symptoms that are worse with activity and prevent him from working. The record before the Board contains service medical records and post-service medical records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). Private medical records dated from September to November 1997 indicate that the veteran was diagnosed with a herniated nucleus pulposus at L4. On examination in November 1997, there was no tenderness to palpation. Forward flexion was limited and bilateral lateral bending and lateral turning were essentially normal. Later that month, the veteran underwent a laminectomy and diskectomy for herniated nucleus pulposus at L4 on the right. In October 1998 correspondence, a VA social worker stated that the veteran's medical condition was such that he had been encouraged to seek social security, supplemental security income and a reevaluation of his service-connected disabilities. His primary care physician had informed him that as his physical condition continued to deteriorate, he should not return to work and that the veteran's disability was to be permanent and little could be done to restore it. The report of a July 1999 VA examination provides that the veteran's claims file and records of treatment at the El Paso VAHCC were reviewed. The examiner highlighted the veteran's medical history, including a November 1997 laminectomy and disc excision at L4-5. The veteran said that after the surgery he had good relief from back and leg pain but still had persistent back stiffness and limitation of motion. He said that he was unable to run because of increased back pain during that activity. He used tramadol and naproxen for relief of his residual back pain. It was noted that since August 1998, when his employer had closed, he had been unemployed. He then began attending school and injured his right shoulder. On physical examination, the veteran had loss of normal lumbar lordosis. The paravertebral muscles were of normal tone and without spasm. Range of motion was from 13 degrees extension to 48 degrees flexion with 13 degrees of lateral bending bilaterally, and 20 degrees rotation bilaterally. Patellar and Achilles reflexes were 2+ and symmetrical. The diagnosis was degenerative disc disease, L4-5 and L5-S1 lumbar spine, with documented herniation at the L4-5 level, treated surgically, improved, with residual back pain and limitation of spine motion; equivalent to intervertebral disc syndrome, moderate, with recurring attacks. The examiner opined that the original description of the veteran's back pain in the veteran's medical records described an apparently spontaneous onset without prior injury or unusual activity. Moreover, pain in the posterior thigh had been present at the initial presentation. These characteristics were more typical of degenerative disc disease with sciatica rather than of a strain. The first radiographs, obtained in 1991, showed advanced bony adaptive changes to degenerative disc disease. Since it took many months to years for these changes to occur, it was more likely than not that the origin of the veteran's degenerative disc disease occurred while in service. The diagnosis of lumbosacral strain was made in error. The report of an October 2002 VA examination provides that the veteran's claims file was not available for review, but that his VA medical records were reviewed. In cases where entitlement to compensation has already been established and an increase in the disability rating is at issue, as here, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As a result, the fact that the examiner did not have the veteran's claims file fore review does not lessen the probative value to the report in terms of current symptoms. The veteran said that he had constant pain, that was severe to very severe. The veteran stated that he had flare-ups that were the worst pain in his life, that were related to activities. They would last for about two hours and were relieved with rest. Such pain usually radiated to his right leg. Activities that increased the pain were kneeling, bending, and prolonged walking for more than 45 minutes which also made his right leg give out. In addition, he complained of increased stiffness and lack of endurance. The veteran reported taking tramadol 50 mg for treatment, one tablet twice a day. The examiner observed that urine drug screen was negative, indicating that then veteran was not in fact taking tramadol. The veteran's back symptoms affected his daily activities by slowing him down but he was still able to do his duties at home. It affected his job because he quit his job ten months ago. The examiner said that at a result he did not know if the condition incapacitated him or not. According to the veteran, he was incapacitated only during flare-ups, depending on activities, and it lasted about two hours. On physical examination, the veteran had a well-healed surgical scar about 1.5 inches in length with no abnormalities. Flexion was to 80 degrees with mild pain at 80 degrees. Extension backwards was to 30 degrees with mild pain starting a 20 degrees. Lateral flexion bilaterally was to 30 degrees with mild pain at 30 degrees. Rotation was to 40 degrees with mild pain that was just noticed to the right side of the rotation. There was no atrophy or muscle wasting noted in any aspect of his lower extremities. He complained of subjective decreased sensory on the aspect of the lower leg below the knee but there was no specific dermatone with it. The veteran's gait was normal and he could heel and toe walk without any difficulty. Right leg strength was 5-/5, versus 5+/5 on the left. Patellar and ankle jerk reflexes were 1/4 and 2/4 respectively, bilaterally. A current MRI resulted in an impression of moderate right neural foraminal stenosis at L4-5 secondary to endplate degenerative changes, with no evidence of epidural fibrosis; and hemangioma in the L5 vertebral body. The final diagnosis of the examination was chronic back strain secondary to degenerative disc disease at L4-5 and to spondylolisthesis at L5, found; and status post diskectomy at L4-5 with secondary moderate right neural foraminal stenosis, with sign of mild right leg radiculopathy, found. Legal Analysis 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 (2002). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. "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." 38 C.F.R. § 4.7. Lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, warrants a 20 percent evaluation. Severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5295. Under the prior version of 38 C.F.R. § 4.71a, DC 5293 (effective prior to September 23, 2002), a 20 percent rating is assigned for moderate intervertebral disc syndrome productive of recurring attacks. A 40 percent rating is assigned for severe intervertebral disc syndrome productive of recurring attacks with intermittent relief. Under the revised version of DC 5293 (effective September 23, 2002) intervertebral disc syndrome (preoperatively or postoperatively) is 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. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months is rated 20 percent. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is rated 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5293, as amended effective September 23, 2002, 67 Fed. Reg. 54345-54349 (August 22, 2002). Note (1) provides that for purposes of evaluations under DC 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. 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. 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. With regards to separate evaluations of the chronic orthopedic and neurologic manifestations of the veteran's low back disability, in addition to the criteria for lumbosacral strain noted above, mild incomplete paralysis of the sciatic nerve warrants a 10 percent evaluation and moderate incomplete paralysis warrants a 20 percent evaluation. 38 C.F.R. § 4.124a, DC 8520 (2002). Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). In the present case, the Board finds that neither the old or the revised version of DC 5293 is more favorable to the veteran. When limitation of motion of the lumbar spine is moderate, a 20 percent rating is provided. When the limitation of motion is severe, a rating of 40 percent is warranted. 38 C.F.R. § 4.71a, DC 5292 (2002). In addition, the Board observes that disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45. See Deluca v. Brown, 8 Vet. App. 202 (1995). Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the veteran's claim for an evaluation in excess of 20 percent for his service-connected lumbosacral strain with degenerative disc disease at L4-5, L5-S1, postoperative herniation L4-5, under any of the applicable schedular or extra-schedular criteria. Turning to the criteria for evaluating lumbosacral strain, the competent medical evidence shows some minor arthritic changes upon X-ray but it is negative for listing of the whole spine to the opposite side, positive Goldthwait's sign, osteo-arthritic changes, or abnormal mobility on forced motion. Thus, a rating in excess of 20 percent under Diagnostic Code 5295 is not warranted. Turning to the prior criteria for evaluating intervertebral disc syndrome, the competent medical evidence is negative for severe intervertebral disc syndrome productive of recurring attacks with intermittent relief. The July 1999 VA examiner specifically classified the veteran's intervertebral disc syndrome as moderate and that assessment was based upon a thorough history and physical examination. The October 2002 VA examiner found that the veteran's right leg radiculopathy was mild; this assessment was also based upon a thorough history and physical examination. The latter examination revealed right leg strength was -5/5 or near normal, compared to 5/5 on the left. Clinical evaluations have consistently shown bilateral and equal ankle jerks. The Board also notes that the latter examiner indicated that, while the veteran complained of constant pain and gave a history of taking tramadol twice a day, a urine drug screen was negative for that medication. In addition, there are no VA or private outpatient treatment reports showing that required treatment for recurring attacks with intermittent relief on a regular basis. Nor is an evaluation in excess of 20 percent warranted by the revised version of DC 5293. First, the competent medical evidence is negative for evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. While the veteran essentially contends that he has flare-ups of symptoms consistent with incapacitation, an incapacitating episode is defined as 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 Note 1 after 38 C.F.R. § 4.71, Code 5293, effective September 23, 2002. There is no medical evidence of record documenting recurrent episodes of incapacitation as defined above. As noted, there are no outpatient treatment reports showing that the veteran required treatment on a regular basis or had any incapacitating episodes in the past 12 months. In addition, while there is some indication of mild radiculopathy of the right lower extremity, the preponderance of the evidence is against mild incomplete paralysis of either sciatic nerve. As noted above, there is no indication of atrophy of any muscles in either lower extremity and strength is essentially normal in both legs. The October 2002 VA examiner specifically noted that, while the veteran complained of subjective decreased sensory perception below the knee, there was no specific dermatome with it. He had a normal gait and could heel and toe walk without difficulty. Plantar and ankle jerk reflexes were present and equal bilaterally. In considering the evidence as a whole, the Board finds that the preponderance of the evidence is against a compensable evaluation under DC 8520. Combining a noncompensable evaluation for neurologic manifestations with a 20 percent evaluation for lumbosacral strain would not result in an evaluation in excess of his current 20 percent evaluation. 38 C.F.R. § 4.25 (2002). The competent medical evidence, including the most recent VA examination report, also fails to show that the veteran's service-connected low back disability results in more than moderate limitation of motion of the lumbar spine. The most recent examination showed only slight limitation of motion. Accordingly, a 40 percent evaluation is not warranted under DC 5292. The Board recognizes the veteran's complaints of pain on use and during flare-ups. However, this pain is adequately contemplated by the 20 percent evaluation. The most recent VA examination report shows that there was no atrophy or wasting noted in any aspect of his lower extremities and that the veteran was not in fact taking tramadol, as he had reported, at least at that time, as a urine test was negative for that drug. There is no competent medical evidence that the veteran's low back disability results in weakened movement, instability, excess fatigability or incoordination. Despite the veteran's assertions of ongoing low back pain radiating into the right leg that interferes with activity and employment, there is no medical evidence that he has ever sought treatment during an actual flare-up. Simply put, there is no objective evidence to show that pain or flare-ups of pain results in any additional functional limitation to a degree that would support a finding of more than moderate limitation of motion of the lumbar spine or more than moderate intervertebral disc syndrome, nor is there competent evidence of fatigue, weakness or incoordination that results in any appreciable increase in functional limitation. Therefore, the Board concludes that the veteran's low back disability is correctly evaluated as 20 percent disabling, and a higher evaluation under sections 4.40, 4.45 or 4.59 is not warranted. See DeLuca v. Brown, 8 Vet. App. at 202. Finally, the Board observes that in exceptional cases where schedular evaluations are found to be inadequate, consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities" is made. 38 C.F.R. § 3.321 (2002). "The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. The Court held in Floyd v. Brown, 9 Vet. App. 88 (1996) 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. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. The Court has held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Director of the Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In the present case, the RO provided, and obviously considered, the criteria referable to an extraschedular evaluation, but did not grant an increased evaluation on this basis. The Board does not find the veteran's disability picture to be unusual or exceptional in nature as to warrant referral of his case to the Director for consideration of extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b(1). In this regard, the veteran has failed to present any evidence of particular circumstances that render impractical the application of the regular rating criteria. While the veteran maintains that he is unable to work because of his low back disability, he has submitted no supportive evidence such as employment records or statements from employers showing time lost from work for health reasons. There are no medical opinions in the record that the veteran's service- connected low back condition has markedly interfered with employment or required any inpatient care other than that for which he was awarded a temporary 100 percent evaluation. The October 1998 VA social worker correspondence does not specify which of the veteran's disorders his primary VA physician believed would preclude employment. As the veteran has not indicated any VA treatment for his service-connected low back disability, the Board finds it unlikely that such disability is the condition deemed to be precluding employment. In fact, the veteran informed a VA examiner that he had stopped working because his employer closed. Hence, the preponderance of the evidence is against finding that the veteran's service- connected low back disability is exceptional in nature, or causes a marked interference with employment as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321. As there is no objective evidence showing that his service-connected low back disability has a substantial impact upon his occupational abilities that is not otherwise accounted for by application of the rating schedule, an extraschedular evaluation is not for application. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER An evaluation in excess of 20 percent for lumbosacral strain with degenerative disc disease at L4-5, L5-S1, postoperative herniation L4-5, is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, 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.