Citation Nr: 0813090 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 03-26 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating in excess of 10 percent for a low back disorder prior to February 26, 2005, and in excess of 40 percent from February 26, 2005. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran performed active military service from October 1974 to April 1979. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2000-issued rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that in pertinent part denied an increased rating for a low back disorder. The Board remanded the case in June 2004 for further development. In August 2005, the RO assigned a 40 percent rating for the low back effective from February 26, 2005. The Board will consider whether a higher rating is warranted for the low back for both portions of the appeal period. Review of the record shows the veteran has advanced contentions to the effect that service-connected disabilities cause marked interference with employment. Thus, the issue of a total rating based on individual unemployability due to service-connected disabilities is referred to the RO for appropriate action. The June 2004 Board remand also included entitlement to service connection for an acquired psychiatric disorder. In August 2005, the RO granted service connection for an acquired psychiatric disorder. The issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDINGS OF FACT 1. For the portion of the appeal period prior to February 26, 2005, lumbar spine degenerative disc disease more closely resembles a severe intervertebral disc disease with recurring attacks and intermittent relief; pronounced intervertebral disc syndrome is not shown. 2. Incapacitating episodes of intervertebral disc syndrome having a total duration of at least six weeks during a 12- month period are not shown. 3. Unfavorable ankylosis of the entire thoracolumbar spine is not shown. 4. Beginning September 23, 2002, the left lower extremity radicular symptoms are equivalent to no more than moderate incomplete paralysis of the sciatic nerve. 5. Beginning September 23, 2002, the right lower extremity radicular symptoms are equivalent to no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the period prior to February 26, 2005, the criteria for a 40 percent schedular rating for degenerative disc disease of the lumbar spine are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71, Plate V, § 4.71a, Diagnostic Code 5293 (2003). 2. A disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine has not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71, Plate V, § 4.71a, Diagnostic Code 5293 (2003), Diagnostic Code 5243 (2007). 3. For the period beginning on September 23, 2002, the criteria for a 20 percent schedular rating for right lower extremity sciatica are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.123, 4.124a, Diagnostic Code 8520 (2007). 4. For the period beginning on September 23, 2002, the criteria for a 20 percent schedular rating for left lower extremity sciatica are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.123, 4.124a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for 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). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA 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; (3) that the claimant is expected to provide; and (4) and VA must ask the claimant 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). These notices must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, § 5103(a) requires, at a minimum, that VA notify the claimant that the claimant must provide, or ask VA 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). If the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by simply demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), VA must provide general notice of that requirement to the claimant. Additionally, the claimant 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, VA's notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical 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, at 43-44. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that a notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present case, the unfavorable decision that is the basis of this appeal had been decided only 8 days after enactment of the § 5103(a) requirements in November 2000. VA had not yet had time to react to the new statute and provide uniform guidance throughout the field. VA acknowledges that under these circumstances the claimant has the right to a content- complying notice and proper subsequent VA process. VA's notice errors were rectified by a June 2004 Board remand followed by adequate notice sent in July 2004 and re- adjudication in the form of a supplemental statement of the case (SSOC) issued in August 2005. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained all necessary medical records. The claimant was afforded VA medical examinations. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist 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). Increased Rating for the Low Back Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Evaluation of a disability includes consideration of the veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. 38 C.F.R. § 4.10. The Court held that 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Period Prior to September 23, 2002 The claims files reflect that the appeal period begins in June 1999, when the veteran requested an increased rating. The prior provisions of the rating schedule must be used from June 1999, as the revisions to the rating schedule did not occur until September 23, 2002. According to the appealed November 2000 rating decision, a 10 percent rating was continued for degenerative disc disease of the lumbar spine under Diagnostic Code 5293. It was not until the August 2005 rating decision that the RO assigned a 40 percent rating effective from February 26, 2005, under Diagnostic Code 5243. Under Diagnostic Code 5292, evaluations from 10 to 40 percent are available for limitation of motion of the lumbar spine. Slight limitation of motion of the lumbar spine warrants a 10 percent evaluation. Moderate limitation of motion of the lumbar spine warrants a 20 percent evaluation. A 40 percent evaluation requires severe limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). Under the rating criteria of Diagnostic Code 5293, intervertebral disc syndrome, a 10 percent evaluation is assigned for mild intervertebral disc syndrome. A 20 percent rating is assigned for moderate intervertebral disc syndrome, defined as "recurring attacks." A 40 percent rating is warranted for severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent evaluation is warranted for 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. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). Various VA outpatient treatment reports dated in 1999 and 2000 and a VA compensation examination report dated in May 2000 note persistent severe low back pain, radiating pains, shooting pains, lumbar spasm, bilateral lower extremity weakness with muscle atrophy, severe limitation of motion, and complaint of intermittent bowel and bladder incontinence. Comparing these manifestations to the rating criteria for intervertebral disc syndrome, the criteria of a 40 percent rating under Diagnostic Code 5293 are more nearly approximated. Because 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 have not been demonstrated, a 60 percent rating under Diagnostic Code 5293 is not warranted. Because Diagnostic Code 5292 does not offer a rating higher than the 40 percent rating to be assigned under Diagnostic Code 5293, no further analysis of Diagnostic Code 5292 is necessary. For that portion of the appeal period prior to September 23, 2002, a 40 percent rating must be granted for lumbar spine intervertebral disc syndrome under Diagnostic Code 5293. The evidence does not contain factual findings that demonstrate distinct time periods during the period prior to September 23, 2002, in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings. The assignment of staged ratings is therefore unnecessary. Hart, supra. Rating Period Beginning September 23, 2002 Effective September 23, 2002, the rating criteria for intervertebral disc syndrome were revised. Beginning on that date, intervertebral disc syndrome may be evaluated based on incapacitating episodes as follows: Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months....................................................... ..60 percent With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months......40 percent With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months................20 percent With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12months......................10 percent Note (1): For purposes of evaluations under diagnostic code 5243, 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. Note (2): 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): 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 incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. The medical evidence dated from September 23, 2002 continues to show severe intervertebral disc syndrome. Thus, a 40 percent rating under Diagnostic Code 5293 could be continued (a former rating provision may be extended, but the revised criteria cannot be applied retroactively earlier than the effective date of the revision). A July 2002 VA orthopedic treatment report notes bilateral lower extremity numbness and weakness. Another July 2002 VA report notes that the veteran reported increased atrophy in the lower extremities, especially the right leg. The spine exhibited very flat lordosis. Range of motion was to only 20 degrees of flexion and to 5 degrees of extension while leaning on crutches. The physician measured 0.5 centimeter of atrophy of the right quadriceps, compared to the left. Right thigh muscle weakness and left peroneal weakness was noted. The veteran used an AFO (ankle-foot orthotic). The impression was degenerative neuromuscular disease, etiology undetermined. A February 2003 VA outpatient treatment report notes increasing low back pain with spasm and increasing weakness. The examiner found generalized weakness, especially in the right lower extremity. In September 2003, lumbar tenderness, involuntary lumbar muscle spasm, very limited flexibility, and persistent right peroneal weakness was noted. A January 2004 VA orthopedic clinic report notes that the veteran used a scooter and Canadian crutches. The veteran reported that he could not stand up straight without losing his balance. There was generalized weakness in the lower extremities. A computerized tomography (CT) scan did not show nerve root impingement. The impressions were degenerative facet joint arthritis and degenerative cerebellar disease. A February 2005 VA orthopedic compensation examination report reflects a complaint of continuous severe low back pain. The veteran reported pain that radiated to the buttocks. He was unable to walk. He reported pain and numbness in the thighs. The examiner saw loss of lordosis. Range of motion of the thoracolumbar spine was not obtained due to severe pain. Postural abnormalities and muscle spasm were noted. There was numbness and paresthesia in L5 and S1 distribution, bilaterally. Strength was reduced throughout the lumbar spine myotomes. Straight leg test was positive bilaterally. Diagnostic imaging (otherwise unidentified) showed mild disc- space narrowing from L3 to S1. CT scan showed disc bulging at L3-5 with central canal narrowing. Mild to moderate neuroforaminal stenosis was seen at L4-5. The diagnosis was lumbar spine degenerative spinal stenosis. The disability caused severe functional impairment with additional impairment due to fatigue, weakness, and lack of endurance. In August 2005, the RO granted a 40 percent rating under Diagnostic Code 5292. According to Note 2 above, we must rate neurologic and orthopedic abnormalities separately under an appropriate diagnostic code or codes. Because the RO has assigned a 40 percent rating under Diagnostic Code 5243 and because 40 percent is the highest rating offered, the Board will not further address limitation of motion. However, the Board must consider a rating or ratings for all neurologic deficits attributed to the service-connected lumbar spine disability. Bilateral lower extremity numbness, paresthesia, and weakness are reported by both medical and lay evidence. Below are some relevant rating criteria. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. Absent organic changes, the maximum rating will be moderate, unless sciatic nerve involvement is shown. 38 C.F.R. § 4.123 (2007). Neuralgia, cranial or peripheral, is usually characterized by a dull and intermittent pain, of typical distribution, so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (2007). For disease of the peripheral nerves, the term "incomplete paralysis" when used with peripheral nerve injuries indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation 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 bilateral combine with application of the bilateral factor. Diagnostic Code 8520 is analogous to the neurologic deficits because the anatomical area of the neurologic deficits more nearly approximates the level of disability produced by sciatica when considering functional impairment, anatomical location, and symptomatology. 38 C.F.R. § 4.20. Keeping in mind that wholly sensory manifestations warrant a rating for mild, or at most, a moderate disability, the involvement shown in this case is both sensory and motor. Therefore, the Board will consider a moderate or greater disability rating. Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation requires moderate incomplete paralysis. A 40 percent evaluation requires moderately severe incomplete paralysis. A 60 percent evaluation requires severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124(a), Code 8520 (2007). Because weakness has been described as nearly incapacitating in severity and because there is noticeable or "marked" muscle atrophy, the neurologic deficits of each lower extremity more nearly approximate moderately incomplete paralysis. Therefore, a separate 20 percent neurologic rating under Diagnostic Code 8520 must be considered for each lower extremity for that portion of the appeal period beginning on September 23, 2002. The evidence does not contain factual findings that demonstrate distinct time periods during the period beginning on September 23, 2002, in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings. The assignment of staged ratings is therefore unnecessary. Hart, supra. On September 26, 2003, VA renumbered the diagnostic code numbers for intervertebral disc syndrome from 5293 to 5243 and also published the General Rating Formula for Diseases and Injuries of the Spine, as follows: Unfavorable ankylosis of the entire spine......100 percent Unfavorable ankylosis of the entire thoracolumbar spine.................................... .............................50 percent 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.................................... .....40 percent Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.................................... .............................30 percent 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................................. .........20 percent 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.................10 percent 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 38 C.F.R. § 4.71, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007). Because unfavorable ankylosis of the entire thoracolumbar spine is not shown, these new rating criteria do not offer the veteran a rating higher than that already assigned for limitation of motion. ORDER For that portion of the appeal period prior to February 26, 2005, a 40 percent schedular rating for lumbar spine intervertebral disc syndrome is granted, subject to the laws and regulations governing payment of monetary benefits. A disability rating in excess of 40 percent for lumbar spine intervertebral disc syndrome is denied. For that portion of the appeal period beginning September 23, 2002, a separate 20 percent rating for moderate incomplete paralysis of the left lower extremity is granted, subject to the laws and regulations governing payment of monetary benefits. For that portion of the appeal period beginning September 23, 2002, a separate 20 percent rating for moderate incomplete paralysis of the right lower extremity is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs