Citation Nr: 0813556	
Decision Date: 04/24/08    Archive Date: 05/01/08

DOCKET NO.  06-17 925	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to an increased initial rating greater than 40 
percent for a lumbosacral disability. 


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate 
for Veterans Affairs


ATTORNEY FOR THE BOARD

John Francis, Associate Counsel





INTRODUCTION

The veteran served on active duty from June 1981 to July 1984 
with subsequent service in the Puerto Rico National Guard and 
the U.S. Army Reserve including duty from March 7 to March 
11, 2005. 

This appeal comes before the Board of Veterans' Appeals 
(Board) from a February 2006 rating decision of a Department 
of Veterans Affairs (VA) Regional Office (RO) that granted 
service connection and a 40 percent rating for lumbosacral 
strain and myositis with disc protrusion and radiculopathy to 
the lower right extremity.  


FINDING OF FACT

The veteran's lumbosacral disability is manifested by disc 
protrusion and mild stenosis at L2-3; a small disc protrusion 
at L4-5 with an annular tear, ligament hypertrophy, and mild 
stenosis; and a disc osteophyte complex at L5-S1 abutting the 
nerve root with decreased disc spacing.  There is tenderness 
on palpation and muscle spasms but no ankylosis, kyphosis, or 
scoliosis.  The veteran uses a one point cane for ambulation 
but is able to perform most activities of daily living, 
operate an automobile, and work full time in an 
administrative position.  


CONCLUSION OF LAW

The criteria for an increased initial rating for a 
lumbosacral disability have not been met. 38 U.S.C.A. § 1155 
(West 2002);  38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45. 
4.59. 4.71a, Diagnostic Codes 5237, 5238, 5242 (2007).







REASONS AND BASES FOR FINDING AND CONCLUSION

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).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his 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).  
Proper notice from 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) 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).  This notice must be provided prior 
to an initial unfavorable decision on a claim by the agency 
of original jurisdiction.  Mayfield v. Nicholson, 444 F.3d 
1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 
112 (2004).  

Here, the RO sent correspondence on September 2005 that fully 
addressed all four notice elements and was sent prior to the 
initial decision in this matter.  The letter informed the 
appellant of what evidence was required to substantiate the 
claim for service connection and of the appellant's and VA's 
respective duties for obtaining evidence.  The appellant was 
also asked to submit all evidence and/or information in his 
possession.

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims held that, upon receipt 
of an application for a service-connection claim, 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating, or is necessary to substantiate, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.

Here, the veteran is challenging the initial evaluation 
assigned following the grant of service connection.  In 
Dingess, the Court of Appeals for Veterans Claims held that 
in cases where service connection has been granted and an 
initial disability rating and effective date have been 
assigned, the typical service-connection claim has been more 
than substantiated, it has been proven, thereby rendering 
section 5103(a) notice no longer required because the purpose 
that the notice is intended to serve has been fulfilled.  Id. 
at 490-91.  Thus, because the notice that was provided before 
service connection was granted was legally sufficient, VA's 
duty to notify in this case has been satisfied.

In addition, VA has obtained all relevant, identified, and 
available evidence and has notified the appellant of any 
evidence that could not be obtained.  VA has also obtained 
medical examinations.  Thus, the Board finds that VA has 
satisfied both the notice and duty to assist provisions of 
the law.

The veteran contends that his lumbosacral disability is more 
severe than is contemplated by the initial 40 percent rating.  

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 rating codes identify the various 
disabilities.  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 required for that rating.  
Otherwise, the lower rating will be assigned.  38 C.F.R. § 
4.7.  Any reasonable doubt regarding the degree of disability 
is resolved in favor of the veteran.  38 C.F.R. § 4.3.  

At the time of an initial award, separate ratings can be 
assigned for separate periods of time based on the facts 
found, a practice known as "staged" ratings.  Fenderson v. 
West, 12 Vet. App. 119, 126 (1999).  

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.

Codes predicated on limitation of motion do not prohibit 
consideration of a higher rating based on functional loss due 
to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 
4.45, 4.59.  Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca 
v. Brown, 8 Vet. App. 202, 206 (1995).  A finding of 
dysfunction due to pain must be supported by, among other 
things, adequate pathology.  38 C.F.R. § 4.40.  
"[F]unctional loss due to pain is to be rated at the same 
level as the functional loss when flexion is impeded."  
Schafrath, 1 Vet. App. at 592.  Evaluating the disability 
under several diagnostic codes, the Board considers the level 
of impairment of the ability to engage in ordinary 
activities, including employment, and assesses the effect of 
pain on those activities.  38 C.F.R. §§ 4.10, 4.40, 4.45, 
4.59; DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  

The General Rating Formula for Diseases and Injuries of the 
Spine, 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 are as follows: a 
40 percent rating is warranted when there is forward flexion 
of the thoracolumbar spine to 30 degrees or less, or with 
favorable ankylosis of the entire thoracolumbar spine; a 50 
percent rating is warranted if there is unfavorable ankylosis 
of the entire thoracolumbar spine; and a 100 percent rating 
is warranted if there is unfavorable ankylosis of the entire 
spine.  This rating formula applies to lumbosacral strain, 
spinal stenosis, and degenerative arthritis of the spine.  38 
C.F.R. § 4.71a, General Rating Formula for Diseases and 
Injuries of the Spine, Diagnostic Codes 5237, 5238, 5242.

Normal ranges of motion for the thoracolumbar spine are 90 
degrees flexion, and 30 degrees extension, lateral flexion, 
and rotation.  38 C.F.R. § 4.71a, Plate V (2007). 
The code for intervertebral disc syndrome (Diagnostic Code 
5243) permits evaluation under either the General Rating 
Formula for Diseases and Injuries of the Spine or under the 
Formula for Rating Intervertebral Disc Syndrome Based on 
Incapacitating Episodes, whichever results in the higher 
evaluation when all disabilities are combined.  
Service records showed that while on duty on March 7, 2005, 
the veteran experienced low back pain after performing sit-up 
exercises.  He reported that the pain became more severe 
after running on an uneven athletic field, and he sought 
treatment after four days.  A magnetic resonance image 
obtained one week after the injury showed degenerative 
intervertebral changes with marginal spurring at L5-S1 and a 
small underlying disc protrusion at the same level.  There 
was good preservation of the other disc interspaces with 
minimal bulging at the L4-5 level.  There was no evidence of 
central canal stenosis and minimal osteoarthropathy at the 
lower lumbar levels.  The veteran received several limited 
duty profiles, prescription pain medication, and conservative 
therapy directed by VA clinicians and a private chiropractor 
with little relief.  In July 2005, the veteran experienced 
several acute episodes of lower back pain with pain radiating 
to the right leg.  He was issued permanent duty restrictions 
and recommended for a medical board to determine his fitness 
for further military service.  Service medical records do not 
show further treatment or the results of a medical board.  A 
private physician conducted an electromyography and nerve 
conduction studies in August 2005 and confirmed radiculopathy 
to the right leg.  

In a September 2005 general medical examination, a VA 
physician noted the veteran's reports of continued low back 
pain with leg muscle cramps, severe radiating pain to the 
lower extremities, and insomnia due to pain.  The physician 
noted that the veteran used prescription pain medication but 
that he continued his work as a Commonwealth policeman.  His 
clinical observations and diagnoses were consistent with the 
earlier images and examination reports. 

In January 2006, a VA examiner noted a review of the claims 
file and the veteran's reports of continued low back pain 
radiating to both legs.  The veteran reported that he had not 
experienced back pain prior to the injury in March 2005.  
Since then, he experienced moderate sharp pain two to four 
hours per day with flare-up pain episodes twice per week, 
precipitated by prolonged standing or sitting, bending, lower 
extremity activities, and cold and damp weather.  He was able 
to work full time as a policeman but was assigned only 
administrative work.  He was independent in all activities of 
daily living.  He did not experience bowel, bladder, or 
sexual dysfunction.  He walked with an abnormal gait and used 
a back brace but no other supportive devices and reported no 
history of falling.  The examiner measured a range of motion 
of 20 degrees flexion, 10 degrees extension, 10 degrees 
bidirectional lateral flexion, and 15 degrees bidirectional 
rotation, all with pain through most of the range of motion.  

The examiner noted tenderness, guarding, and muscle spasms on 
palpation but no evidence of scoliosis, reversed lordosis, or 
abnormal kyphosis.  There was no evidence of muscle atrophy 
and the veteran had normal tone and strength bilaterally.  
Decreased pinprick stimulation or sensation in the right 
lower extremity at the L4-L5 level was noted on neurological 
examination.  Deep tendon reflexes were 2+ in both lower 
extremities.  Testing showed that the radiating pain was of 
spinal and not hip origin. The examiner noted the veteran's 
report that he had visited a hospital emergency room once in 
the past year to obtain medication.  He was not hospitalized 
but was prescribed bed rest.  The examiner reviewed the MRI 
and EMG studies and diagnosed lumbosacral strain, myositis, 
and right L5 radiculopathy.  However, he noted that the 
degenerative joint disease changes, spurs, and 
osteoarthropathy at levels L4-5 and L5-S1 were not related to 
military service but rather were the result of aging.  In two 
March 2006 letters, the veteran's private chiropractor stated 
that he had diagnosed disc protrusions, bulging, and 
osteoarthropathy but did not comment on their etiology. 

In February 2006, the RO granted service connection and a 40 
percent rating for lumbosacral strain and myositis with disc 
protrusion and right leg radiculopathy. 

In May 2006, the veteran was evaluated for treatment at a VA 
pain clinic.  The examiner noted the previous imaging studies 
and summarized the veteran's history of treatment for low 
back pain. The examiner noted that the veteran continued to 
work as a policeman performing administrative duties and 
could operate an automobile and walk without assistive 
devices.  Range of motion was 25 degrees flexion and 5 
degrees extension.  The examiner did not measure rotational 
or lateral motion but noted moderate limitation in rotation 
and a normal range of lateral motion but with pain on motion.  
The examiner noted no clinical radicular / neurological signs 
and that the pain was also associated with poor physical 
fitness. In July 2006, the same examiner noted no changes 
after eight physical therapy sessions.  

An additional magnetic resonance image was obtained in 
October 2006.  The study showed a flattening of the lumbar 
lordosis, degenerative changes, posterior osteophytes and 
disc protrusion or bulging at three levels.  In November 
2006, the VA examiner from January 2006 provided an addendum 
to his earlier report and stated that the disc protrusions 
were likely caused by the injury in March 2005 and were the 
cause of the radiculopathy to the right leg.  

In March 2007, the veteran submitted records of outpatient 
treatment by his private physician and waived consideration 
of the evidence by the RO.  The records are substantially 
illegible and contain no additional imaging studies but do 
indicate that the veteran was prescribed medication for back 
pain.  In May 2007, the veteran was again evaluated at a VA 
pain clinic.  The examiner noted the veteran's reports of 
increasingly moderate to severe low back pain radiating to 
the right leg with some numbness and weakness of the left 
leg.  The pain interfered with sleep but the veteran 
continued to work full time.  Sensory and motor responses 
were normal, and the veteran walked with a normal gait.  The 
examiner noted no lordosis, kyphosis, or scoliosis but noted 
tenderness on palpation and muscle spasms.  The examiner did 
not measure range of motion but noted pain on motion.  The 
veteran declined the examiner's offer of epidural steroid 
injections and preferred to continue with conservative 
treatment.  In June 2007, the RO granted separate service 
connection and a 10 percent rating for radiculopathy in the 
right leg.  

In October 2007, the veteran underwent a physical and 
occupational functional assessment at a VA clinic. The 
examiner noted that the veteran continued full time 
administrative work as a policeman on light duty including 
operation of an automobile.  The examiner noted the veteran's 
reports of the need for assistance in putting on socks and 
having some difficulty in bathing, toileting, and climbing 
stairs.  The veteran did not use a cane for support but was 
unable to complete a previously recommended walking program.  
The examiner measured a limited range of motion in terms not 
directly applicable to the rating criteria with pain noted on 
motion.  The veteran again declined an offer of intervention 
with injections, and there were no recommendations for 
surgery.  The examiner revised the veteran's prescription 
medication regimen.  

In December 2007, the veteran visited a private emergency 
room on two occasions for low back pain exacerbations.  On 
both occasions he was found to be stable and was released 
after a few hours with the same prescription medication.  Bed 
rest was not prescribed.  An additional magnetic resonance 
image was obtained that continued to show a disc protrusion 
and mild stenosis at L2-3, a small disc protrusion at L4-5 
with an annular tear, ligament hypertrophy, and mild 
stenosis, and a disc osteophyte complex at L5-S1 abutting the 
nerve root with decreased disc spacing.  The interpreter also 
noted straightening of the lumbar lordosis possibly caused by 
muscle spasms.  Later the same month, a VA examiner noted 
that the veteran used a one point cane and continued to 
experience constant pain with exacerbations on motion.  The 
only neurological deficit was diminished sensation on the 
right.  A VA neurosurgeon examined the veteran, reviewed the 
studies, and stated that the images did not explain the 
veteran's reports of extreme pain.  He recommended continued 
conservative management with medication and physical therapy.    

It is noted that a VA neurosurgery consult dated in December 
2007 purportedly assessed the veteran as having left L5-S1 
radiculopathy with L5-S1 herniated disk.  In view of the 
current symptoms more on left side and disc herniation with 
lateralization to the left side, medical management initially 
was recommended.  It is noted, however, that the narrative 
preceding the assessment stated that the veteran reported an 
acute exacerbation along with radiation to the right lower 
extremity and some numbness on the lateral aspect of the 
right lower extremity.  Moreover, physical examination 
revealed right L5-S1 pain trayectory.  An addendum to the 
report indicated that the clinical picture is of right lumbar 
radiculopathy that seems to be L5-S1.  In light of the 
narrative in the neurosurgery consult report and the 
addendum, which all referred to right sided radiculopathy, 
the Board finds that references to left sided radiculpathy in 
the assessment portion of the report were typographical 
errors.  The claims folder as a whole does not show the 
presence of any neurological deficit in the left leg that 
would meet the criteria for a compensable rating.  

The Board concludes that a rating not greater than 40 percent 
for lumbosacral strain, myositis, and disc protrusions is 
warranted for the entire period covered by the claim.  
Forward flexion of the spine has been measured throughout the 
period as less than 30 degrees with neurological symptoms.  
The Board notes that the veteran has been granted a separate, 
additional 10 percent rating for radiculopathy to the right 
lower extremity.  A higher rating is not warranted for the 
back disability because there is no evidence of unfavorable 
ankylosis of the spine.  Although a medical examiner noted 
that certain degenerative changes of the spine were not 
likely the result of the injury on active duty, no medical 
providers have offered any quantitative assessments of the 
relative contributions of the injury and degenerative 
conditions to the veteran's symptomatology.  The Board will 
not attempt any apportionment and will consider that all 
symptoms and functional limitations are the result of the two 
service-connected back disabilities. 

The application of Diagnostic Code 5243 pertaining to 
intervertebral disc syndrome has been considered.  However, 
the evidence does not show that the veteran has had 
incapacitating episodes.  An incapacitating episode is 
defined in Note (1) of the Diagnostic Code as a period of 
acute disc syndrome that requires bed rest prescribed by a 
physician and treatment by a physician.  Although the veteran 
reported during a VA examination that he was placed on bed 
rest at one point, there is no evidence showing that there 
was an incapacitating episode with a duration of at least six 
weeks as is required for the assignment of a 60 percent 
rating.  Accordingly, an increased rating is not warranted 
pursuant to Diagnostic Code 5243.

The Board considered whether a higher rating is warranted 
because of more severe functional loss in or impact on the 
activities of daily living and employment due to pain not 
contemplated by the rating criteria.  The Board notes that 
the veteran sought emergency room treatment for exacerbations 
on two occasions in December 2007 and started using a cane 
for support.  Over the period of the claim, examiners have 
noted his reports of an increasing level of pain, especially 
on motion or exacerbation and have adjusted medications on 
several occasions.  However, the emergency records showed 
that the veteran was stable and that he was immediately 
released on his existing medication.  All magnetic resonance 
images over the period have shown the same indications, and a 
VA neurologist stated that the studies do not support the 
reported levels of pain.  There have been no recommendations 
for surgical intervention, and the veteran has declined 
offers of treatment by epidural injection.  Furthermore, 
although the veteran reported requiring assistance in donning 
socks, he was otherwise able to perform the activities of 
daily living, operate an automobile, and continued full time 
administrative work without lost time.  Therefore, in 
consideration of the entire medical record including the 
level of treatment and intervention as well as the veteran's 
ability to perform most daily activities and work full time, 
the Board concludes that a rating for additional functional 
loss due to constant or flare-up pain is not warranted. 

Further, the Board notes that there is also no indication 
that the condition has necessitated frequent periods of 
hospitalization or has otherwise rendered impractical the 
application of the regular schedular standards.  In the 
absence of evidence of these factors, the Board concludes 
that the criteria for submission for assignment of 
extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) 
have not been met.  See Bagwell v. Brown, 9 Vet. App. 337, 
339 (1996); Floyd v. Brown, 
9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. 
App. 218, 227 (1995).  

The weight of the probative evidence demonstrates that the 
veteran's current lumbosacral strain, myositis, and disc 
protrusions of the lumbar spine warrant a rating not greater 
than 40 percent for the entire pendency of the claim.  As the 
preponderance of the evidence is against this claim, the 
"benefit of the doubt" rule is not for application, and the 
Board must deny the claim.  See 38 U.S.C.A. § 5107(b); 
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An increased initial rating greater than 40 percent for a 
lumbosacral disability is denied.  



____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs