Citation Nr: 0811149 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-29 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected lumbar radiculopathy. 2. Entitlement to an increased disability rating in excess of 20 percent for service-connected dorsolumbar paravertebral myositis. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD K. Ahlstrom, Associate Counsel INTRODUCTION The veteran served on active duty from May 1984 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. FINDINGS OF FACT 1. The veteran's service-connected lumbar radiculopathy is manifested by symptoms analogous to moderate incomplete paralysis of the sciatic nerve on the left side. 2. The competent evidence of record demonstrates forward flexion of the veteran's thoracolumbar spine to 49 degrees; the evidence of record does not demonstrate forward flexion of the veteran's thoracolumbar spine to 30 degrees or favorable ankylosis of the veteran's entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 20 percent for service-connected lumbar radiculopathy have been met for the entire period of the claim. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.20, 4.120, 4.123, 4.124a, Diagnostic Code 5620 (2007). 2. The criteria for a disability rating in excess of 20 percent for service-connected dorsolumbar paravertebral myositis have not been met for the entire period of the claim. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5021 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the veteran 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 veteran is expected to provide; and (4) must ask the veteran to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, 38 U.S.C.A. § 5103 requires, at a minimum, that the Secretary notify the veteran that, to substantiate a claim, the veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the veteran. Additionally, the veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, 22 Vet. App. at 43-44. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Here, the duty to notify was satisfied by way of letters sent to the veteran in December 2003 and March 2006 that fully addressed all notice elements. The letters informed the veteran of what evidence was needed to establish the benefits sought, of what VA would do or had done, and of what evidence the veteran should provide, including medical and lay statements describing the effects of the disabilities, informed the veteran that it was his responsibility to make sure that VA received all requested records that are not in the possession of a Federal department or agency necessary to support the claim, and asked the veteran to notify the VA of any additional evidence that may be helpful to the veteran's claim. The March 2006 letter also provided the veteran with notice of the disability rating regulations and how effective dates are assigned. Further, post-adjudicatory notice, by way of the June 2004 statement of the case, informed the veteran of the criteria required to warrant an increased disability rating for myositis, including specific measurements and the range of ratings available under those diagnostic codes. Therefore, the Board finds that any notice errors did not affect the essential fairness of this adjudication, and that it is not prejudicial to the veteran for the Board to proceed to finally decide this appeal. The Board is not aware of the existence of additional relevant evidence in connection with the veteran's claim that VA has not sought. The veteran's service medical records, VA medical treatment records, and lay statements have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The veteran was also accorded VA examinations in February 2004 and September 2005 as part of this claim. 38 C.F.R. § 3.159(c) (4). The Board finds that VA has obtained, or made reasonable efforts to obtain, all evidence that might be relevant to the issue on appeal, and that VA has satisfied the duty to assist. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002 Disability Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 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. 38 C.F.R. § 4.14. When an unlisted condition is encountered, such condition may be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. At the outset, the Board notes that claims for increased ratings, to include initial ratings, require consideration of entitlement to such ratings during the entire relevant time period involved, i.e. from the date the veteran files a claim which ultimately results in an appealed RO decision, and contemplate staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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). With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Initial Rating for Lumbar Radiculopathy In the February 2004 rating decision currently on appeal, the RO granted service connection for lumbar radiculopathy and, pursuant to 38 C.F.R. § 4.20, assigned a 10 percent rating under the analogous Diagnostic Code 8620 (neuritis of the sciatic nerve). Diagnostic Code 8620 provides for disability ratings where there is evidence of paralysis of the sciatic nerve. Complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or lost, is evaluated as 80 percent disabling. Severe incomplete paralysis with marked muscular atrophy is evaluated as 60 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling, moderate as 20 percent disabling, and mild as 10 percent disabling. 38 C.F.R. § 4.124a, Code 8620. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The Board notes that the terms "mild," "moderate" and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Upon VA examination in February 2004, the veteran demonstrated weakened muscle strength of 4/5 in the left ankle dorsiflexor muscles and in the left extensor hallucis longus and tibialis anterior muscles. The veteran also demonstrated weakened muscle strength of 4/5 in the left ankle plantar flexor muscles. The examiner noted diminished pinprick and smooth sensation on the left L5-S1 dermatomes on the veteran's foot. The examiner also noted a positive Lasegue's sign on the veteran's left side, which is indicative of sciatic nerve tension. The examiner provided a diagnosis of lumbar radiculopathy. The veteran underwent another VA examination in September 2005. The veteran stated that he experienced burning pain at his middle and lower back that radiated down to his left lower extremity, hip, lateral thigh, and calf. The veteran also reported tripping about once per week, usually with the left lower extremity. The examiner noted decreased pinprick and light touch sensation at the left L4 and L5 distribution. The veteran's left dorsiflexor and left extensor hallucis longus muscles exhibited weakened strength of 4/5. The examiner noted that the Lasegue's test was painful, but negative. The examiner diagnosed the veteran with lumbar radiculopathy. The competent medical evidence of record demonstrates that the veteran maintains muscle strength of 4/5 in the left dorsiflexor, left extensor hallucis longus, left tibialis anterior, and left plantar flexor muscles. Further, the veteran had either positive or painful Lasegue's tests at both VA examinations. The veteran has reported experiencing chronic, intense, burning pain in his lower back and left lower extremity. The veteran has also reported that this neurological impairment has resulted in frequent falls. Based upon the evidence and resolving all doubt in the veteran's favor, the Board finds that the veteran's lumbar radiculopathy has resulted in symptoms analogous to moderate incomplete paralysis of the sciatic nerve and a 20 percent disability rating is warranted for the entire relevant time period (i.e. since November 2003). See Fenderson, 12 Vet. App. 119 (1999). The Board also finds that a higher disability rating is not warranted, as the evidence does not demonstrate symptoms analogous to moderately severe incomplete paralysis of the sciatic nerve. Increased Rating for Dorsolumbar Paravertebral Myositis Throughout the rating period on appeal, the veteran was assigned a 20 percent disability rating for his dorsolumbar paravertebral myositis pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5021 and/or Diagnostic Code 5237 (see, for example, the August 2005 rating action). Diagnostic Code 5021 instructs the rater to evaluate based on limitation of motion of the part affected, as degenerative arthritis (Diagnostic Code 5003). Diagnostic Code 5003 in turn provides that degenerative arthritis is to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Since myositis involves two groups of minor joints, a 20 percent evaluation is appropriate under Diagnostic Code 5021, and is the highest available under that code. See also 38 C.F.R. § 4.45(f) Under either Diagnostic Code 5237 (lumbosacral strain) or 5242 (degenerative arthritis of the spine), the rating criteria for either diagnostic code is the same, which is the General Rating Formula for Diseases and Injuries of the Spine at 38 C.F.R. § 4.71a. Under these codes, a 20 percent disability rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or where the combined range of motion for the thoracolumbar spine is not greater than 120 degrees, or where muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. Upon VA examination February 2004, the veteran had thoracolumbar flexion to 60 degrees. The examiner noted that the veteran experienced pain on the last degree of the range of motion measured. The examiner noted that there was severe muscle spasm, but no ankylosis. Upon VA examination in September 2005, the veteran had thoracolumbar flexion to 49 degrees, when considering pain on use. The examiner noted that no ankylosis was present. The veteran reported experiencing constant low back pain, with an increase in pain associated with prolonged sitting, household chores, lifting, and bending. After a review of the evidence of record, the Board finds that, for the entire period on appeal, the veteran's dorsolumbar paravertebral myositis does not warrant a disability rating greater than 20 percent under Diagnostic Codes 5237 or 5242. His thoracolumbar flexion measurement was 49 degrees, which is greater than the 30 degrees or less required for the 40 percent disability rating. Further, there is no evidence of ankylosis of the veteran's thoracolumbar spine. The Board acknowledges the veteran's testimony regarding his pain, and the effect his lower back disability has on his daily life. However, the evidence of record does not demonstrate forward flexion of the thoracolumbar spine limited to 30 degrees or less do to pain, or favorable ankylosis of the entire thoracolumbar spine, as is required for a disability rating of 40 percent. The Board also acknowledges the veteran's contentions, contained in his substantive appeal, that his fibromyalgia causes pain in his back, hips, and legs, as well as his entire body. The veteran was denied service connection for fibromyalgia by an August 2005 rating decision. The veteran did not submit a notice of disagreement with this decision within one year of notice of the decision, and it has become final. However, the Board has taken into consideration all symptomatology related to the veteran's back disabilities, including the subjective evidence of pain provided by the veteran. After considering all the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim for an increased rating for the entire period of the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; Gilbert, supra. The claim for a schedular disability rating greater than 20 percent for dorsolumbar paravertebral myositis is, therefore, denied. ORDER An initial disability rating of 20 percent for service- connected lumbar radiculopathy is granted. A disability rating in excess of 20 percent for service- connected dorsolumbar paravertebral myositis is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs