Citation Nr: 0811704 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 06-30 942 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine, with radiculopathy of the lower extremities. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. L. Reynolds, Counsel INTRODUCTION The veteran served on active duty from November 1946 to November 1949 and from May 1950 to July 1968. This case comes before the Board of Veterans' Appeals (BVA or Board) from a September 2005 rating decision of the RO in Oakland, California. FINDING OF FACT The medical and other evidence of record indicates that the veteran's service-connected DJD and DDD of the lumbar spine is manifested by complaints of pain and no more than moderate functional impairment and is also accompanied by symptoms compatible with mild neurological deficit in each lower extremity. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for DJD and DDD of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.71a, Diagnostic Code 5237 (2007). 2. The criteria for a separate evaluation of 10 percent for left lower extremity radiculopathy are met. 38 U.S.C.A. §§ 1155; 38 C.F.R. 4.124a, Diagnostic Code 8520 (2007). 3. The criteria for a separate evaluation of 10 percent for right lower extremity radiculopathy are met. 38 U.S.C.A. §§ 1155; 38 C.F.R. 4.124a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the veteran with the notice required under the VCAA, to include notice that he submit any pertinent evidence in his possession, by letter mailed in January 2007, after its initial adjudication of the claim. Additionally, the veteran was also provided with the requisite notice with respect to the effective-date element of his claim in the January 2007 letter. Following provision of the required notice and completion of all indicated development of the record, the originating agency readjudicated the veteran's claim in June 2007 and again in October 2007. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had VCAA notice been provided at an earlier time. The Court has recently provided guidance with respect to the notice that is necessary in increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Adequate VCAA notice in an increased rating claim must inform the claimant that he 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; and that, if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes. If the claimant is rated under a Diagnostic Code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability, the notice letter must provide at least general notice of that requirement. The notice letter must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. In this case, the January 2007 letter informed the veteran that he 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 veteran's employment and daily life. Additionally, the letter included information on how VA determines the disability rating by use of the rating schedule, and provided examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain), to include statements from employers concerning the impact of the disability on the veteran's employment and statements from persons concerning their observations of how the disability has affected the veteran. This is not a case in which a noticeable worsening or increase in severity of the disability would not establish the veteran's entitlement to an increased rating. In any event, the veteran was provided the specific criteria for rating the disability in the July 2006 Statement of the Case. Additionally, the veteran has participated in the appeals process and presented written arguments with particular focus on the criteria needed for a higher disability evaluation, hence he has demonstrated actual knowledge of the evidence needed to substantiate his claim. Although the veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that an increased rating is not warranted for the veteran's DJD and DDD of the lumbar spine. Consequently, no effective date for an increased rating will be assigned for his low back disability, so the failure to provide earlier notice with respect to that element of the claim was no more than harmless error. Moreover, following the provision of the required notice and the completion of all indicated development, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision on this claim would have been different had complete VCAA notice been provided at an earlier time. The Board also notes that the veteran has been afforded appropriate VA examinations and service medical records and pertinent VA and private medical records have been obtained. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non prejudicial to the veteran. Accordingly, the Board will address the merits of the claim. Pertinent Laws and Regulations Disability ratings - in general Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Rating musculoskeletal disabilities The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See generally DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran 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. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 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. 38 C.F.R. § 4.59. Specific rating criteria The current version of the General Rating Formula for Diseases and Injuries of the Spine provides as follows: (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease 100% Unfavorable ankylosis of the entire spine; 50% Unfavorable ankylosis of the entire thoracolumbar spine; 40% Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 30% Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 20% Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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; 10% Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): 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; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 5235 Vertebral fracture or dislocation, 5236 Sacroiliac injury and weakness, 5237 Lumbosacral or cervical strain, 5238 Spinal stenosis, 5239 Spondylolisthesis or segmental instability, 5240 Ankylosing spondylitis, 5241 Spinal fusion, 5242 Degenerative arthritis of the spine (see also diagnostic code 5003) See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242 (2007). Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2006) [reasonable doubt to be resolved in veteran's favor]. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The veteran's service-connected DJD and DDD of the lumbar spine has been rated on the basis of limitation of motion under the General Rating Formula for Diseases and Injuries of the Spine, which is discussed above. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. To obtain a disability rating higher than the currently- assigned 20 percent under Diagnostic Code 5237, the veteran would have to demonstrate forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. On VA examination in July 2005, the veteran exhibited forward flexion of the lumbar spine to 50 degrees, with pain at 50 degrees. The February 2007 examination showed forward flexion to 70 degrees with no complaints of pain. Accordingly, the veteran falls well short of the limitation of motion required to warrant a higher schedular rating. Moreover, the veteran has not exhibited favorable ankylosis of the entire thoracolumbar spine. Ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. The medical evidence of record fails to demonstrate the presence of any ankylosis, favorable or unfavorable. Both VA examinations showed that the veteran was able to forward flex the lumbar spine. Because the veteran is able to move his lower back joint, by definition, it is not immobile. Therefore, ankylosis is not shown. Thus, an evaluation in excess of 20 percent would not be warranted. The competent medical evidence reflects consideration of the veteran's complaints of pain, weakness and fatigability by medical professionals. The veteran is competent to report that he is worse or entitled to a higher evaluation. However, the observation of a skilled professional is more probative of the degree of the veteran's impairment. Even when considering the additional limitation of motion caused by fatigue, weakness, pain and flare-ups, neither the actual range of motion nor the functional limitation warrants an evaluation in excess of 20 percent for limitation of motion based upon the appropriate codes governing limitation of motion. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. See Hart supra; Fenderson v. West, 12 Vet. App. 119 (1999). For the reasons stated above, the Board finds the preponderance of the evidence is against the claim for increase, and the benefit-of-the-doubt rule is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Separate Evaluation for Lower Extremity Radiculopathy The Board has considered whether a separate rating is warranted under the provisions of 38 C.F.R. § 4.121a, Diagnostic Code 8520 as analogous to impairment of the sciatic nerve. Under Diagnostic Code 8520, pertaining to paralysis of the sciatic nerve, mild incomplete paralysis warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. An 80 percent disability rating is warranted for complete paralysis, 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 (very rarely) lost. In this regard, the Board believes the most probative evidence, to be the reports of the VA examinations conducted in July 2005 and September 2007, as well as a private neurological evaluation conducted in September 2006. During the July 2005 VA examination the veteran complained of pain which was localized in his back but occasionally radiated to his right hip. The diagnosis was lumbar strain with stated history of disc degeneration. In September 2006 the veteran underwent a comprehensive private neurological evaluation. During the evaluation the veteran complained of back pain which radiated down both lower extremities. He reported that the pain was so intense that he had trouble walking and speaking. The pertinent results of the evaluation showed symmetric mild slowing of F- wave response. The physician explained that this was suggestive of sciatica or could be consistent with a cauda equina syndrome or other such intraspinal pathology affecting nerve rootlets within the spinal canal. He further noted that an absence of any history of incontinence or paraparesis and a positive history of sciatica type pains would be more consistent with sciatica. During the September 2007 VA peripheral nerve examination the veteran again complained of bilateral sciatica in the lower extremities to a compensable degree. He noted that for the past 11 months he had not experienced any sciatica but that the pain was random and unpredictable. The diagnosis was DDD, multilevel, with DJD at L4-L5 and L5-S1, with intermittent lumbar radiculopathy. The examiner opined that the veteran has lumbar radiculopathy which is related to his DDD of the lumbosacral spine. He further explained that the lumbar radiculopathy was due to minimally narrowed neural foramen, as well as canal and lateral recess narrowing due to DDD. The Board finds these objective findings to be consistent with the analogous rating of no more than 10 percent in each lower extremity under Diagnostic Code 8520, which contemplates mild incomplete paralysis of the sciatic nerve. The Board further finds that the preponderance of the evidence is against the assignment of separate ratings in excess of 10 percent in either extremity based on a finding of moderate incomplete paralysis. In short, the Board finds that the credible and probative evidence supports the assignment of separate 10 percent ratings under Diagnostic Code 8520, based on right and left lower extremity radiculopathy associated with his service- connected lumbosacral strain. Extraschedular Consideration Finally, review of the record reveals that the RO has not considered referral of this case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2007). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award 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. The Board finds that the evidence does not show that this 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. The Board concludes that referral of this case to the Under Secretary or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation is not warranted. ORDER Entitlement to an initial disability rating in excess of 20 percent for degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine is denied. A separate disability rating of 10 percent for neurological deficit in the left lower extremity, is granted, subject to the regulations applicable to the payment of VA monetary awards. A separate disability rating of 10 percent for neurological deficit in the right lower extremity, is granted, subject to the regulations applicable to the payment of VA monetary awards. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs