Citation Nr: 0813303 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 05-38 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for bilateral spondylosis, L-5, with spondylolisthesis (low back disability), to include restoration of a 20 percent disability rating. 2. Entitlement to an initial rating in excess of 10 percent for left radiculopathy due to low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Preston, Associate Counsel INTRODUCTION The veteran served on active duty from November 2003 to May 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In September 2007, the veteran filed a claim for an increased rating for pseudofolliculitis barbae. This claim is referred to the RO for appropriate action. FINDINGS OF FACT 1. A November 2004 rating decision assigned a 20 percent rating for bilateral spondylosis, L-5, with spondylolisthesis and left radiculopathy, effective May 8, 2004, on the basis of functional impairment of the spine. 2. In an August 2005 decision, a Decision Review Officer determined that the bilateral spondylosis, L-5, with spondylolisthesis, and left radiculopathy warranted a 10 percent rating for functional impairment of the spine and a 10 percent rating for left radiculopathy, effective May 8, 2004. 3. According to the Combined Ratings Table at 38 C.F.R. § 4.25, the combined rating for two disabilities assigned 10 percent ratings is 10 percent rating. 4. The August 2005 decision reducing the rating from 20 percent to 19 percent was not based on a finding of clear and unmistakable error in the November 2004 rating decision or on evidence showing that the disability had improved. 5. From May 8, 2004, to the present, forward flexion of the thoracolumbar spine has not been limited to 30 degrees or less and the veteran has not experienced any incapacitating episodes necessitating bed rest prescribed by a physician. 6. From May 8, 2004, to the present, the left radiculopathy has been manifested by incomplete paralysis of the sciatic nerve that more nearly approximates mild than moderate. CONCLUSIONS OF LAW 1. Bilateral spondylosis, L-5, with spondylolisthesis warrants a 20 percent rating, but not higher, on the basis of functional impairment of the spine, throughout the initial evaluation period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.104, 3.105, 3.344, 4.25, 4.71a, Diagnostic Codes 5235- 5243 (2007). 2. The criteria for an initial rating in excess of 10 percent for left radiculopathy due to bilateral spondylosis, L-5, with spondylolisthesis, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The 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 and Supp. 2007), 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 claimant 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")." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with the notice required under the VCAA, to include notice that he should submit any pertinent evidence in his possession and notice concerning the effective-date element of the claim, by letters mailed in April 2005 and March 2006. Although complete required notice was not sent until after the initial adjudication of the claims, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the veteran's claims. There is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. The record also reflects that the veteran's service medical records and pertinent post-service treatment records have been obtained, and the veteran has been afforded appropriate VA examinations in response to his claims. Neither the veteran nor his representative has identified any other evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the veteran. Accordingly, the Board will address the merits of the veteran's claims. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2007). Disorders of the spine are evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235- 5243. Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the general rating formula for rating diseases and injuries of the spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine that is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a.. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 140 degrees. Third, 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 the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. When intervertebral disc syndrome is evaluated (preoperatively or postoperatively) on the total duration of incapacitating episodes over the past 12 months, a maximum 60 percent evaluation is warranted, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent evaluation is assigned for incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months. A 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months. Note 1 provides that for the 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, a 20 percent rating is provided for moderate sciatic impairment, and a 10 percent rating is provided for mild impairment. Words such as "mild," "moderate," "severe" and "pronounced" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. § 4.6 (2007). It should also be noted that use of terminology such as "mild" by VA examiners and other medical professionals, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2007). Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2007) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities. The Board initially notes that a November 2004 rating decision granted entitlement to service connection for bilateral spondylosis, L-5, with spondylolisthesis and left radiculopathy and assigned a 20 percent disability rating, effective May 8, 2004, on the basis of functional impairment of the spine. In an August 2005 decision, a Decision Review Officer assigned a 10 percent for bilateral spondylosis, L-5, with spondylolisthesis, on the basis of functional impairment of the spine and also assigned a separate 10 percent rating for left radiculopathy. Both of these ratings were made effective May 8, 2004. The Board observes that according to the Combined Ratings Table at 38 C.F.R. § 4.25, a 10 percent rating and a 10 percent rating combine to 19 percent. In view of this legal fact, the consequence is inescapable that the August 2005 RO assignment of two separate 10 percent disability evaluations for the orthopedic and neurologic manifestations of the veteran's low back disorder had the effect of reducing the veteran's disability rating from 20 percent to 19 percent. This was done retroactively without any determination of error in the November 2004 rating decision and without any evidence showing improvement. Therefore, the Board finds that the veteran is entitled to restoration of a 20 percent disability rating for functional impairment of the spine. See 38 C.F.R. §§ 3.104, 3.344 (2007). The Board notes that the record does not establish that the veteran veteran's low back disability has resulted in any incapacitating episodes necessitating bed rest prescribed by a physician. In fact, the examiner at the January 2007 VA examination specifically noted upon review of the claims file and examination of the appellant that in the past 12 months the veteran had had no episodes of incapacitation resulting from his lumbosacral spine condition. The November 2004 VA general medical examiner likewise reported that the veteran had had no periods of incapacitation. The Board acknowledges the veteran's and his wife's reports that at times his back pain is so severe he is unable to get out of bed. However, there is no evidence that the veteran has been prescribed bedrest by a physician because of his low back disability. Therefore, he is not entitled to an increased rating on the basis of incapacitating episodes. The veteran contends that an increased rating is warranted on account of his experience of pain and his limited mobility and restricted ability to lead an active life both with his family and through any work. On the most recent VA examination, in January 2007, the veteran was diagnosed with lumbar spondylosis at the L5 level with grade 1 L5-S1 spondylolisthesis, with residual pain and limitation of motion. That notwithstanding, neither this VA examination report nor any other medical evidence of record establishes that forward flexion of the veteran's thoracolumbar spine is limited to 30 degrees or less or that the veteran has ankylosis of his entire thoracolumbar spine. In this regard, the Board notes that at the November 2004 and January 2007 VA examinations, forward flexion of the lumbar spine was measured to 85 degrees and 90 degrees, respectively. Some muscle spasm and fairly acute pain was noted at the maximum range of motion in November 2004. However, the November 2004 VA examiner noted that there was no additional loss of range of motion upon repetitive testing due to pain, fatigue or lack of endurance. The January 2007 examination report includes a note that no muscle spasm was found. In addition, the January 2007 VA examiner noted that on repetitive use there was no additional loss of motion by pain, fatigue, weakness or lack of endurance. In view of the foregoing, the disability does not warrant a higher evaluation under the general rating formula for rating diseases and injuries of the spine. The veteran's left radiculopathy is rated under Diagnostic Code 8520. The November 2004 VA examination report states that the only neurological abnormality the examiner could detect was decreased pin prick sensation over the entire left lower leg, extending down to the fifth toe. The examiner reported that deep tendon reflexes were normal with "no evidence of weakness, foot drop, or other neurologic abnormalities." The examiner reported that neurological findings on physical examination were otherwise normal. The veteran was afforded a VA examination of his peripheral nerves in January 2006 that specifically addressed the veteran's complaints of left groin and left leg pain. Some subjective numbness was noted in the entire left inguinal area just before the inguinal canal and all the way in the anterior thigh and part of the lower extremity as well, laterally and medially. The foot, it was noted, was not involved. Straight-leg raising was tolerated to 80 degrees when sitting up but only to 75 degrees when lying down. There were no Babinski's; increased but equal symmetrical deep tendon reflexes were noted on examination at the knee and ankle levels. The veteran walked on his heels and toes fairly well. The examiner diagnosed left inguinal pain and included in his diagnosis the assessment that while the veteran's testicles felt a little smaller than normal the examiner did not feel any mass or any abnormality or adenopathy in the inguinal region. (He also ventured the opinion that the left inguinal pain was unrelated to the low back pain.) On the most recent VA examination, in January 2007, the veteran complained of pain which radiated from his lower back down to the buttocks and the left thigh and left foot, as well as some pain down to the left inguinal area. On neurological examination, decreased sensation in the left S1 dermatome was found. Motor examination showed no muscle atrophy or weakness. Reflexes were normal. Lasegue sign was positive for the left lower extremity. The examiner stated that the positive Lasegue sign of the left lower extremity and decreased sensation with pinprick test of the left lower leg indicated lumbar radiculopathy of the left lower extremity The foregoing evidence confirms the presence of decreased sensation in the left lower extremity as a result of the veteran's low back disability. Although the veteran has alleged that he experiences radiating pain, the objective evidence does not substantiate the presence of any motor impairment of the left lower extremity. The Board notes that when the neurological impairment, as here, is wholly sensory, the rating should be for the mild or at most, the moderate degree. See 38 C.F.R. § 4.124a, Note preceding Schedule of Ratings for Diseases of the Peripheral Nerves. In the Board's opinion, the neurological impairment is not more than mild and accordingly does not warrant more than the currently assigned rating of 10 percent. The Board has considered whether there is any other schedular basis for granting higher disability evaluations, but has found none. Consideration has also been given to assigning a staged rating; however, at no time during the period in question have the disabilities warranted more than a 20 percent rating for functional impairment of the spine and a 10 percent rating for neurological impairment. See Fenderson v. West, 12 Vet. App. 119 (1999). Extra-schedular Consideration The Board has also considered whether this case should be forwarded to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The record reflects that the veteran has not required frequent hospitalization for either disability and that the manifestations of the disabilities are those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from either disability would be in excess of that contemplated by the 20 and 10 percent evaluations. Therefore, the Board has determined that referral of this case for extra-schedular consideration is not in order. ORDER Entitlement to a 20 percent disability rating, but not higher, for functional impairment of the thoracolumbar spine due to bilateral spondylosis, L-5, with spondylolisthesis, is granted, throughout the initial rating period, subject to the criteria applicable to the payment of monetary benefits. Entitlement to an initial disability rating in excess of 10 percent for left radiculopathy due to bilateral spondylosis, L-5, with spondylolisthesis, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs