Citation Nr: 0814109 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 02-19 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an increased evaluation for spondylolisthesis, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from October 1989 to June 1992. This appeal arises from an October 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. The veteran's claim was remanded by the Board of Veterans' Appeals (Board) in August 2004, November 2005 and January 2007. The notice and development ordered by the Board has been accomplished to the extent possible. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The veteran's spondylolisthesis produces slight limitation of motion. 2. The veteran's spondylolisthesis does not limit forward flexion to between 30 and 60 degrees or in combination limit range of motion of the thoracolumbar spine to 120 degrees. 3. The veteran's spondylolisthesis produces radicular pain into the lower extremities without evidence of any other organic changes such as muscular atrophy, sensory changes or lost reflexes. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent, based on limitation of motion due to spondylolisthesis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010 5289 (1999); 38 C.F.R. § 4.71a, Diagnostic Code 5239 (2007). 2. The criteria for a separate 20 percent rating for radicular pain, due to spondylolisthesis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.123, 4.124a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS During the pendency of this appeal, on January 30, 2008, the United States Court of Appeals for Veterans Claims (hereinafter, "the Court") issued a decision in the appeal of Vazquez-Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30, 2008), which held that notice of requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to increased ratings claims and outlined the information which must be included in notices to veteran's filing a claim for increased rating. For an increased-compensation claim, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, 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 demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA 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. Id. The Board acknowledges that the VCAA letter sent to the veteran in August 2001 does not meet the requirements of Vazquez-Flores and is not sufficient as to content and timing, creating a presumption of prejudice. Nonetheless, such presumption has been overcome for the reasons discussed below. In August 2004 the Board remanded the veteran's claim for an increased rating. In August 2004 VA sent the veteran a letter outlining what was needed from the veteran, informing him his VA records had been requested, and that a VA examination would be scheduled to determine the severity of his low back disorder. The Board noted in the remand that the criteria for rating disabilities of the spine had been amended and ordered that the veteran be provided with both the old and new criteria for rating his low back disorder. In July 2005 a supplemental statement of the case was issued to the veteran which set out both criteria. In November 2005 the Board again ordered the claim remanded on the basis that the VA examination conducted was inadequate for rating purposes. The veteran was reexamined by VA in January 2006. During the rating period the veteran raised, and an October 2002 rating decision adjudicated, the veteran's claims for non-service pension and entitlement to a total disability rating based on individual unemployability due to service- connected disability (TDIU). In conjunction with those claims the veteran submitted evidence regarding the affects of his disability upon his employment. The claims folder includes his records from the Social Security Administration, a statement from his last employer and the veteran's description to VA examiners how his low back pain his limited his functioning on the job. The veteran's VA records of treatment have been obtained. The veteran has not identified any other source of treatment for his service-connected low back disorder. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that VCAA notice of requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. The veteran was adequately notified of the type of evidence necessary to establish a disability rating or effective date for any increase in the July 2007 supplemental statement of the case. The Board has concluded the VA cured any defect in the prior notice to the veteran. In the circumstances of this case, another remand to have the RO take additional action under the new Act and implementing regulations would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran are to be avoided). No further actions to assist the veteran in developing his claims are required. VA has satisfied its obligation to notify and assist the veteran in this case. The Board concludes, therefore, that a decision on the merits at this time may be issued. Increased Rating In January 1992 a Physical Evaluation Board Proceeding report included the following description of the veteran's disability: Painful spondylolisthesis, grade II, Soldier's injuries occurred while operating a forklift in Saudi Arabia. Soldier has no spasms and his range of lumbar motion is normal. He has no evidence of sciatica or neurological dysfunctions. X-rays reveal a grade II spondylolisthesis with bilateral pars intra-articular defects. Based on those findings a September 1992 rating decision granted service connection for grade II, spondylolisthesis and assigned a noncompensable rating. The next relevant record in the claims folder is a report of a February 2000 VA examination for rating purposes. In February 2000, the veteran told the VA examiner he was not taking any medication for his back. He reported that he periodically had a stabbing pain in his low back when he would sit or stand for an extended period of time. The pain at time ran up his spine and at times into his right leg. Examination revealed that his gait was normal. There was some flattening of the lumbar lordosis. Forward flexion was to 90 degrees and backward extension was to 30 degrees. Lateral flexion produced pain at 30 degrees bilaterally. Rotation was to 30 degrees on both sides. There was no neurologic deficit. Residuals of injury to the lumbar spine was the diagnosis. February 2000 X-rays of the lumbar spine revealed spondylolysis with spondylolisthesis at L5-S1. Form SSA 831-C3 reveals the veteran was found disabled as of February 2001 due to a functional psychotic disorder, no secondary diagnoses were noted. The veteran was hospitalized for treatment of his non-service connected schizophrenia in June 2001. A neurological evaluation was conducted during his hospitalization. His gait was noted to be normal. No motor, sensory or defect of the reflexes was reported. March 2001 VA treatment records reveal the veteran's mother was concerned because he had been fired from his job in February 2001. She was concerned that his psychotic symptoms had been controlled but resulted in his "moving too slowly." June 2001 VA progress notes indicate the veteran denied having any joint pain, sensory or motor disturbances. On a Work History Report which he filled out in July 2001 for the Social Security Administration, (SSA), the veteran indicated that in his last job which he left in 2001, he had frequently lifted 25 pounds, walked for 6 hours, stood for 6 hours, sat for 4 hours, climbed for one hour, knelt for 5 hours, and crouched for 5 hours. A VA examination report of September 2001 reveals the veteran was not on any medication for his back, but reported having low back pain which at times radiated into his right buttock and leg. The orthopedic evaluation revealed his gait was normal. Curvature of the lumbar spine was normal. Forward flexion was limited to 90 degrees due to pain. Backward extension was limited to 30 degrees because of pain. Lateral flexion and rotation were limited to 30 degrees, bilaterally, due to pain. Knee and ankle jerks were intact and there were no neurologic deficits in the lower extremities. Residuals of injury to the lumbar spine as described was the diagnosis. In October 2001, the veteran submitted a VA Form 21-8940 in conjunction with his claim for a total rating. On the application he indicated he was last employed in February 2001. As to the service-connected disability which prevented him from securing or following a substantially gainful occupation he wrote "paranoid schizophrenia." The RO in an October 2001 rating decision granted an increased rating for spondylolisthesis to 10 percent. The RO received a VA Form 21-4192 from the veteran's last employer in March 2002. His employer indicated he had last been employed in February 2001 and had been unable to function at work due to "heavy medication" (antipsychotic) because of physical (broken back). In July 2002, the veteran came to VA complaining of low back pain. Examination revealed pain in the lower lumbosacral area, with no radiation, and normal range of motion. X-rays of the lumbar spine were taken and compared with earlier films by the VA radiologist. He compared the results and his impression was the veteran had stable lumbar spine with a grade I, spondylolisthesis at L5-S1. January 2003 VA outpatient records reveal the veteran complained of experiencing more pain in his lower back. He was taking Naproxen and it helped. The veteran had pain in the lumbar paraspinal muscles with full range of motion. He had mild to moderate pain. No neurological deficits were seen in his extremities. The VA physician recommended discontinuing his Naproxen, taking Ibuprofen, and taking Flexeril as needed. In February 2003 the veteran reported his back hurt nearly all the time. It hurt to lift, stand or sit for a long time. His pain radiated down both legs, the right greater than the left to the area of his heels. He requested stronger medication. November 2003 VA records include a report of a Magnetic Resonance Imaging (MRI) of the lumbar spine. A clinical history of lower back pain with radiculopathy was noted. The diagnostic impression was that the veteran had grade I anterior spondylolisthesis of L5 on S1 with bilateral spondylolysis, causing a moderate to severe bilateral neural foraminal narrowing. There was a small central disc protrusion at L3-4 and mild spondylosis in the rest of the lumbar spine, especially at facet joint. No canal stenosis was seen. In December 2003 the veteran reported having daily episodic low back pain. It was relieved by sitting or lying down, popping his back or moving his legs. It hurt if he walked longer than a block or sat for too long. He had had bilateral numbness of both lower extremities for two to three years. The shooting pain had started in February 2001. It was also noted the veteran had poorly controlled diabetes. A VA physician was asked to evaluate the veteran for possible lumbar spine diagnosis related to any injury sustained while in service. His October 2004 report of that examination notes the veteran described a pinching pain in the low back that radiated into his right leg with burning pain down the right leg to the foot. He could not stay in one position for too long because that began to hurt. He was only able to walk three or four blocks before stopping. He had some radiation down the left leg. After a long day or after repetitive activity he began to have more pain in the low back. Physical examination revealed the veteran had forward flexion all the way past 90 degrees. He could touch his toes without difficulty. He could extend to 20 degrees. His side to side bending was pain free. He did have some tenderness on the left side at L4-5 and also at L5-S1 on the right side. He was minimally tender on the left and more tender on the right. He had 5/5 muscle strength in both lower extremities. Sensation was intact. He had no discrepancies in his knee or ankle reflexes. No spasm was found on examination. October 2004 VA X-rays revealed a mild levoscoliosis, moderate to severe degenerative disc disease at L5-S1, and grade I to II spondylolisthesis with probable bilateral spondylolysis at L5-S1. In December 2005 the veteran requested a cane to increase his safety and decrease his pain with ambulation. A cane was issued and the veteran ambulated forty feet and back and the cane was adjusted for fit. A January 2006 VA examination revealed some tenderness over the lumbar area. No paraspinous muscle spasm was detected. Forward flexion was limited by pain to 20 degrees. Backward extension was limited by pain to 20 degrees. Lateral flexion was limited by pain to 10 degrees, bilaterally. Rotation was limited by pain to 15 degrees, bilaterally. With repetition there was no additional loss of range of motion due to pain, fatigue, weakness or incoordination. In the opinion of the VA physician the veteran did not put up maximum effort on his range of motion exercises on the January 2006 examination. After reviewing the report of the January 2006 VA examination the RO requested that the VA physician who examined the veteran in January 2006 estimate a valid range of motion and indicate whether the prior examination results of October 2004 were more indicative of the level of the veteran's functional impairment. In March 2006 the VA physician wrote as follows: I have reviewed my previous examination of 1/12/06 and I have also reviewed Dr. [W.]'s examination of 10/1/04. When I examined the patient on 1/12/06, it was noted that his range of motion had markedly diminished from his prior exam of 10/1/04. At the time I examined the patient, however, I did not feel that he was putting out maximum effort. It would strictly a guess [sic] or conjecture to estimate a valid range of motion. In my opinion, his prior exam of 10/1/04 would be more indicative of his true functional impairment. That being said, it would strictly be a guess to estimate any additional loss of range of motion due to pain, weakness, fatigability and it would be strictly conjecture and I do not think the estimate would be valid. The veteran responded in March 2006. He contends he applied himself 100 percent. In considering whether a higher rating than 10 percent should be assigned for the veteran's service-connected spondylolisthesis, the Board reviewed the medical evidence to determine the appropriate diagnostic for evaluating his low back disorder. In Smith v. Derwinski, 1 Vet. App. 235 (1991), the United States Court of Appeals for Veterans Claims (hereinafter, "the Court") noted that spondylolisthesis is defined as "forward displacement of one vertebra over another, usually of the fifth lumbar over the body of the sacrum, or of the fourth lumbar over the fifth, usually due to a developmental defect in the pars interarticularis." Dorland's Illustrated Medical Dictionary 1567 (27th ed. 1988). In this instance the physician's in service determined the veteran's spondylolisthesis was the result of trauma sustained in service. For that reason the Board finds that the criteria for rating traumatic arthritis are applicable. During the rating period the criteria for evaluating disabilities of the spine were amended. That amendment added a specific Diagnostic Code for rating spondylolisthesis. For that reason the applicable Diagnostic Code prior to the amendments is that for rating arthritis, and after the amendment the Diagnostic Code of rating spondylolisthesis. Prior to September 26, 2003, traumatic arthritis was rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (1999). Disability due to arthritis was rated based on limitation of motion of the joint. Slight limitation of motion of the lumbar spine was to be rated 10 percent disabling; moderate limitation of motion of the lumbar spine was to be rated 20 percent disabling; and severe limitation of motion of the lumbar spine was to be rated 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). On or after September 26, 2003, a specific rating code for spondylolisthesis was provided at 38 C.F.R. § 4.71a, Diagnostic Code 5239 which was rated under the General Formula for Diseases and Injuries of the Spine. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (2) provides that, for VA compensation purposes, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. When a provision of VA rating schedule is amended while a claim for an increased rating under that provision is pending, a determination must be made as to which regulation is more favorable to the claimant. If the amended regulation is more favorable to the claimant, then the retroactive reach of the regulation is governed by 38 U.S.C.A. § 5110(g)(West 2002), which provides that VA may award an increased rating based on a change in the law retroactive to, but no earlier than, the effective date of the change. VAOPGCPREC 3-2000 The first question to consider is whether there is evidence demonstrating the veteran had moderate limitation of motion of the lumbar spine which is required for assigning a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). In February 2000 the veteran demonstrated 90 degrees of forward flexion, 30 degrees of extension and 30 degrees of lateral flexion and rotation. In essence normal range of motion of the lumbar spine. The veteran reported periodic stabbing pain after sitting or standing. September 2001 range of motion of the lumbar spine was again normal. January 2003 VA records again noted full range of motion. There was mild to moderate pain. October 2004 records again revealed full flexion but some limitation in extension to 20 degrees. The veteran was able to touch his toes and side to side bending was painful free. As to the range of motion demonstrated on the January 2006, the Board found it of little probative value. The VA physician who had an opportunity to observe the veteran, reviewed his medical records including the recent X-ray and MRI, stated that in his opinion the October 2004 results of range of motion testing were more representative of the veteran's impairment. The Board accepts his opinion as a medical professional. The large discrepancy between the range of motion demonstrated in October 2004 and that demonstrated in January 2006 without evidence of any event or increased pathology supports the opinion of the VA physician that the range of motion in October 2004 is of greater probative value. The Board has concluded the evidence does not demonstrate the veteran has moderate limitation of motion due to pain or with flare ups. In addition, the range of motion demonstrated in December 2003 exceeds that required for a higher rating to 20 percent under the General Formula for Rating Diseases and Injuries to the Spine. 38 C.F.R. § 4.71a (effective after September 26, 2006). In December 2003 the veteran demonstrated 90 degrees of forward flexion which exceeds that range of motion from 30 to 60 degrees of the thoracolumbar spine required for a higher rating. Although the December 2003 report did not include a report of all the ranges of motion in degrees those reported forward flexion and extension alone in sum are 110 degrees. The range of motion figures reported in January 2006 are not indicative of the functional impairment of the lumbar spine as explained above. The examination reports also consistently noted the veteran's gait was normal. The evidence does not demonstrate either guarding or scoliosis, reversed lordosis, or abnormal kyphosis. Under both the new and old regulations a separate rating for neurological symptoms may be assigned. A review of the medical evidence indicates the veteran has increasingly experienced pain into his lower extremities. While it does not appear to have limited his range of motion it is becoming more frequent and severe. In Bierman v. Brown, 6 Vet. App. 125 (1994), it was noted that manifestations of neurological symptomatology of a lower extremity which are distinct from low back symptoms (that is, neither duplicative or overlapping) could be rated separately. Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25; Esteban v. Brown, 6 Vet. App. 259, 261(1994). However, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). The MRI taken in November 2003 clearly indicates the veteran has developed moderate to severe neural foraminal narrowing due to his spondylolisthesis. The clinical diagnosis which was the basis for ordering an MRI was listed as "lower back pain with radiculopathy." The radicular symptoms which cause pain in the lower extremities or not duplicative of the lower back pain as they involve a different anatomical area. The new regulations also provide that any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula For Diseases and Injuries of the Spine, Note (1). Thus, the Board must consider the assignment of an evaluation based on impairment of peripheral nerves in addition to the rating for limitation of motion. The symptoms documented in the record are consistent with neuritis. In Suttman v. Brown, 5 Vet. App. 127, 131 (1993) the Court reported the definition of neuritis. "Neuritis" is "inflammation of a nerve". Dorland's Illustrated Medical Dictionary 1127 (27th ed. 1988). The regulations provide that neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided to injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Incomplete paralysis of the sciatic nerve is rated as 60 percent disabling when severe, with marked muscular atrophy. Moderately severe incomplete paralysis is rated as 40 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Mild incomplete paralysis is rated as 10 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (1999)&(2007). A review of the evidence reveals no other organic symptoms than radicular pain. Pain into the right leg is first documented in February 2000 VA records. During the veteran's hospitalization in June 2001 no motor, sensory or defect of his reflexes was found. September 2001 records again noted pain which radiated into the right buttock and then the leg. His knee and ankle jerks were intact and no neurological deficits in the lower extremities were noted. July 2002 records noted no radiation. Beginning in February 2003 the veteran reported his back hurt all the time. It radiated down both legs. In December 2003 the veteran reported daily episodic pain. He also reported bilateral numbness of his lower extremities which had been going on for two to three years. In October 2004, the veteran reported pain that radiated down his right leg with burning down to the right leg to the foot. He also has radiation down his left leg. His muscle strength in his lower extremities was 5/5. Based on those findings there is evidence of moderate impairment of the sciatic nerve. In the absence of any evidence of objective findings such as loss of reflexes, atrophy of muscle, loss of strength, or documentation of sensory disturbances, moderately severe impairment is not shown. The Board noted on one occasion the veteran reported numbness, but during his VA diabetic examinations no sensory impairment was found. The evidence supports the grant of a separate 20 percent rating, based on moderate impairment of the sciatic nerve. 38 C.F.R. § 4.123, 4.124a, Diagnostic Code 8520 (2007). ORDER An increased rating, in excess of 10 percent, for spondylolisthesis based on limitation of motion is denied. A separate 20 percent rating for impairment of the sciatic nerve, is granted subject to regulations governing the award of monetary benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs