Citation Nr: 0814878 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 05-05 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 20 percent for low back pain, status post hemilaminectomy of the lumbosacral spine. 2. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. 3. Entitlement to a total disability rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Buck, Associate Counsel INTRODUCTION The veteran served on active duty from March 1970 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in February and May 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The veteran filed timely appeals of both decisions. The veteran appeared before the undersigned Veterans Law Judge in a hearing in Washington, DC in February 2008 to present testimony on the issue on appeal. He submitted additional evidence at that time, with a waiver of RO consideration of that evidence. The hearing transcript has been associated with the claims file. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. During the course of the appeal, the veteran's back disability has caused limitation of flexion to between 40 and 80 degrees, and a combined thoracolumbar range of motion between 140 and 144 degrees. 2. Neurological deficit caused by the back disability has been primarily sensory in nature, in the form of numbness along the nerve distribution, with occasional slight diminished motor strength. 3. There is no evidence of ankylosis of the spine. 4. There is no evidence that the back disability has caused the veteran's foot to dangle and drop; that there is no active movement of the muscles below the knee possible; or that flexion of the knee is weakened or lost. Nor is there evidence of atrophy of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for low back pain, status post hemilaminectomy of the lumbosacral spine, are not met at any time during the appellate period. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.59, 4.71a, Diagnostic Code 5243 (2007). 2. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity are not met at any time during the appellate period. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.59, 4.71a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in March and May 2006, the agency of original jurisdiction (AOJ) provided notice to the veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007). Specifically, in May 2006, the AOJ notified the veteran of information and evidence necessary to substantiate the claim for an increased rating, indicating that he must show that his disability had increased in severity. This notice included information and evidence that VA would seek to provide and information and evidence that the veteran was expected to provide. The veteran was instructed to submit any evidence in his possession that pertained to his claim. The March 2006 letter notified the veteran of the processes by which effective dates and disability ratings are established, explaining that evaluations are based on the ratings schedule and assigned a rating between 0 and 100 percent, depending on the relevant symptomatology. It instructed the veteran to tell VA about, or give VA, any medical or lay evidence demonstrating the current level of severity of his disability and essentially the effect that any worsening of the disability has had on his employment and daily life. It did so by specifically listing examples of such evidence, such as on-going treatment records, Social Security Administration (SSA) determinations, statements from employers as to job performance, lost time, or other pertinent information, and personal lay statements. The veteran, in fact, has submitted lay statements and hearing testimony regarding his limitations on daily activities, as well as statements from his former employers and SSA records. Thus, it is clear that he understood the types of evidence required by VA to substantiate his increased rating claim. While neither letter provided the veteran with at least general notice of the rating criteria by which his disability is rated, such notice was provided the veteran in the statement of the case in February 2005. See Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008). As shown above, substantially compliant notice was accomplished after the initial denial of the claim; however, the AOJ subsequently readjudicated the claim based on all the evidence in February 2007. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Accordingly, the veteran was not precluded from participating effectively in the processing of his claim and the late notice did not affect the essential fairness of the decision. The otherwise defective notice has resulted in no prejudice to the veteran. VA has done everything reasonably possible to assist the veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2007). Service medical records have been associated with the claims file. All identified and available treatment records have been secured. The veteran has been medically evaluated on several occasions in conjunction with his claim. The duty to assist has been fulfilled. Disability Evaluations The veteran seeks a higher overall disability evaluation for his service-connected low back disability. Such evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the current level of disability is of primary concern in a claim for an increased rating; and the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection was established for low back pain, status post hemilaminectomy of the lumbosacral spine, by rating decision in September 2002 and was evaluated as 20 percent disabling under DC 5293, the code in effect at the time for intervertebral disc syndrome (IDS). By rating decision dated in February 2004, the 20 percent rating was continued, but the diagnostic code was updated to DC 5243, to reflect amendments in the rating schedule. This rating decision also granted a separate 10 percent rating for the veteran's associated peripheral neuropathy of the left lower extremity, under DC 8520. It appears that the decision was rendered on the basis of a routine VA examination held in December 2003, rather than a distinct claim by the veteran. He appealed the rating decision with respect to both ratings referable to his back. They are discussed in turn below. Under the rating criteria for IDS, preoperative or postoperative IDS is to be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, DC 5243 (2007). With regard to the first method of evaluation (total duration of incapacitating episodes over the past 12 months), an incapacitating episode is a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007), Note (1). While the veteran has indicated that bed rest alleviates his pain, he does not contend, nor does the evidence show, that he has ever been prescribed bed rest by a physician. Thus, evaluation under this section is not beneficial to the veteran. The second method of evaluation involves combining separate evaluations for any chronic orthopedic and neurologic manifestations with the veteran's other service-connected disability ratings under 38 C.F.R. § 4.25. The criteria here provide that "chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, DC 5293 (2003), Note (1); 38 C.F.R. § 4.71a, DC 5243 (2007), Note (1). Additionally, when evaluating IDS on the basis of chronic manifestations, orthopedic disabilities are to be evaluated using the criteria from the most appropriate orthopedic diagnostic code(s), and neurologic disabilities are to be evaluated separately using the criteria from the most appropriate neurologic code(s). 38 C.F.R. § 4.71a, DC 5293 (2003), Note (2); 38 C.F.R. § 4.71a, DC 5243 (2007), Note (2). Pertaining to the veteran's orthopedic manifestations, the applicable ratings are found in the General Rating Formula for Diseases and Injuries of the Spine, which rates largely based on ranges of motion and the limitations thereof. 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2) (2007). 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 criteria provide a 100 percent rating for unfavorable ankylosis of the entire spine, a 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine, and, in part, a 40 percent rating is warranted when there is favorable ankylosis of the entire thoracolumbar spine. 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (2007). In this case, there is no medical evidence establishing ankylosis of any portion of the veteran's spine at any time, and there are none of the above symptoms indicative of unfavorable ankylosis. Therefore, the criteria for a 100, 50, or 40 percent rating (in as much as it relates to ankylosis) are not met. The criteria for a 40 percent rating also include when forward flexion of the thoracolumbar spine is limited to 30 degrees or less. A 20 percent rating is warranted 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. The veteran's range of motion has been measured on several occasions throughout the course of the appeal. Given the parameters of the rating criteria described above, limitation of flexion and the combined thoracolumbar range of motion are of particular import. On VA examination in June 2003, the veteran's lumbar spine flexion was limited to 80 degrees, without evidence of pain, deformity, or muscle spasm on testing. While other measurements were taken, the veteran's spine rotation was not; therefore, there was no reliable combined range of motion measurement at that time. Six months later, in December, the veteran underwent additional examination. Pain limited the veteran's flexion to 40 degrees. No combined range of motion is available, as a measurement of extension was not noted. An April 2005 VA examination report noted that the veteran's flexion was limited to 40 degrees on repetitive measurements. Extension, bilateral lateral flexion and bilateral rotation were also measured. His combined range of motion was at least 160 degrees. The veteran underwent his most recent VA examination the following year, in December 2006. At that time, his flexion was again limited to 40 degrees because of pain. His other ranges changed slightly, totaling a combined range of motion of at least 150 degrees. While the veteran's range of motion was recorded on one occasion in the outpatient clinical records, it did not note a measurement of flexion. See VA progress note, dated in August 2003. Therefore, it is not relevant to the discussion here. In sum, throughout the course of the appeal, the veteran's flexion was limited to primarily 40 degrees, with one instance of limitation to 80 degrees. This falls most appropriately within the 20 percent rating category, as the majority of time his flexion was limited to greater than 30 degrees but not greater than 60 degrees. As his combined range of motion was greater than that contemplated by even the 20 percent rating category (between 140 and 144 degrees), that measurement does not provide a basis for a higher rating. Accordingly, the appropriate rating for the veteran's orthopedic manifestations under the criteria is 20 percent. Referable to the veteran's neurologic symptoms, it is noted that this manifestation of his disability has been assigned a 10 percent rating under the criteria relating to the sciatic nerve, which are found at 38 C.F.R. § 4.124a, DC 8520. Under that code, the rating is based on whether there is complete or incomplete paralysis of the nerve. When there is "complete paralysis" of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis. A 40 percent rating requires moderately severe incomplete paralysis. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. The maximum 80 percent rating is when there is complete paralysis. The veteran has consistently reported subjective complaints of radiating pain, which travels from his lower back to his left lower extremity. Specifically, on examination in December 2003, the veteran reported numbness in his left calf and his left foot. Objective examination revealed that sensation was grossly intact in the lower extremities; however, there was a "marked change in perception of sharp" on his lateral left calf, lateral foot, and medial foot. This was the sole neurological finding. In April 2005, during the course of a VA examination, the veteran reported continued radicular pain and numbness on the left side. Motor examination did not reveal evidence of wasting or atrophy. Tone and strength was intact, and the veteran's bilateral circumferential measurements were equal. There was "very mild decrease" of the Achilles reflex. All sensory testing was normal. In conjunction with primary care treatment, the veteran was referred to a private neurologist in October 2005. His symptoms were reviewed, to include left lower extremity radicular pain along the L5 distribution. Physical examination demonstrated that the left lower extremity was chronically weak, with increased difficulty in dorsiflexion of the foot. Muscle strength was noted to be somewhat diminished on L5 distribution. Deep tendon reflexes were below normal. Sensation was diminished in the calf and foot. There was no obvious atrophy. The veteran's radicular pain was noted to be resistant to epidural steroid injection therapy. Notes from a follow up visit in December 2005 confirm that the severity of the veteran's disability was unchanged from the October visit. The veteran underwent further VA examination in December 2006. The veteran's subjective complaints had not changed. The sensory function report indicated decreased vibration and light touch findings in the left lower extremity. Motor examination at this time, however, yielded normal to low normal results on the left side. Reflexes were also found to be normal. The veteran's electromyograph (EMG) study revealed no abnormal findings, and the conclusion was a normal study. While an October 2005 neurologist report indicated diminished muscle strength and reflexes, the remainder of the medical evidence has revealed that the veteran's manifestations are largely sensory in nature. His feelings of numbness in the calf and foot are consistently confirmed. More severe manifestations, however, are not. Of particular note is the December 2006 EMG that returned normal results. This is not to say that the veteran does not experience pain and numbness. It is clear from the record that he does. However, the evidence does not show that the veteran's foot dangles or drops, that he has no active movement below the knee, or that there is atrophy of the left lower extremity. His symptoms, therefore, are adequately compensated under the code at the 10 percent level, and no higher, for mild, incomplete paralysis. On the basis of the entire record, the veteran's back disability warrants a 20 percent rating for his orthopedic symptoms and a 10 percent rating for his neurologic symptoms. These are the current percentages assigned. The evidence has not shown that evaluations in excess of these amounts are warranted. The veteran argues that when he was initially granted non- service-connected pension for his back disability, it was determined to be 60 percent disabling. He argues that since his condition has not changed, his now service-connected disability warrants the same 60 percent rating. A review of the record reveals that non-service-connected pension was granted in February 1998, and that on the basis of the ratings schedule then in effect, a 60 percent disability level was assigned. It is unclear to the Board on what medical basis the 60 percent evaluation was determined. The rating at that time did not explain its findings, but rather merely stated Diagnostic Code 5293, at 60 percent. Regardless, however, of any pension determination made in the past, at issue before the Board is the veteran's current disability level as determined by the rating schedule in effect during the course of his claim. As explained fully above, the evidence does not show that increased ratings are warranted. Instead, the preponderance of the evidence is found to be against the veteran's claim; therefore, the benefit of the doubt provision does not apply. The claims for increased evaluations are denied. ORDER A rating in excess of 20 percent for low back pain, status post hemilaminectomy of the lumbosacral spine, is denied. A rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied. REMAND The veteran contends that his service-connected back disabilities rendered him unemployable at least as early as the date of receipt of his claim for a TDIU, in April 2004. By rating decision dated in May 2004, the RO denied a TDIU. At that time, service connection was in effect for low back pain, at 20 percent, and peripheral neuropathy, at 10 percent. The veteran's combined evaluation was 30 percent. During the course of the appeal, and specifically effective in April 2005, service connection for an adjustment disorder was granted. A 10 percent rating was assigned, bringing the veteran's combined evaluation to 40 percent at that time. Since then, an increase to 30 percent for that disability was made effective in July 2006, raising the combined evaluation to 50 percent. The May 2004 rating decision, and the subsequent statements of the case, note the veteran's percentage ratings in denying the claim under 38 C.F.R. § 4.16(a) (2007), which requires that one disability has, at a minimum, a 40 percent rating, and that there be sufficient additional service-connected disability to bring the combined evaluation to 70 percent or more. These decisional documents also decline to invoke 38 C.F.R. § 4.16(b) (2007), which holds that if the evidence demonstrates that the veteran is unemployable by reason of his service-connected disabilities, but fails to meet these percentage standards, the claim shall be submitted to the Director of Compensation and Pension (C&P) Service for extraschedular consideration. Of record are opinions dated in October 2003, May 2005, and June 2007, all of which indicate that the veteran's service- connected back disabilities have rendered him unemployable, despite his other (non-service-connected) medical conditions. It appears that the primary reason that the RO has declined to refer the veteran's claim to C&P is that SSA records show that other disabilities were at play in that agency's determination that he was unemployable in 1998. While SSA determinations are probative of the issue at hand, they are not dispositive. Particularly in light of the credible opinions in May 2005 and June 2007, which show state that the symptoms caused by the veteran's back disabilities cause unemployability, the claim must be referred to the Director of C&P for extraschedular consideration under 38 C.F.R. § 4.16(b). While the further delay of this case is regrettable, due process considerations require such action. Accordingly, the case is REMANDED for the following action: 1. Refer the veteran's TDIU claim to the Director of Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b) (2007). Attention is invited to the opinions on unemployability dated in October 2003, April 2005, May 2005, and June 2007, which are tabbed in the claims file. 2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs