Citation Nr: 0815082 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 06-13 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an evaluation in excess of 20 percent for grade I spondylolisthesis L4-5 with herniated nucleus pulposis L5-S1 and right leg radiculopathy. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Joseph R. Keselyak, Associate Counsel INTRODUCTION The veteran served on active duty from July 1983 to April 1991. This matter comes to the Board of Veterans' Appeals (Board) from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. A Travel Board hearing was scheduled for May 7, 2007, and the veteran failed to appear. Neither the veteran nor his representative filed a motion for a new hearing. Accordingly, the case will be processed as though the request for a hearing had been withdrawn. See 38 C.F.R. § 20.704(d) (2007). FINDINGS OF FACT 1. The veteran's low back disability has not caused him incapacitating episodes, and is not manifested by ankylosis or forward flexion of the thoracolumbar spine to 30 degrees or less; flexion of the thoracolumbar spine is limited to 60 degrees at most. 2. Neurological impairment of the right lower extremity is manifested by no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent grade I spondylolisthesis L4-5 with herniated nucleus pulposis L5-S1 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5235-5243 (2007). 2. The criteria for a separate evaluation of 10 percent, but no greater, for right leg radiculopathy radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 5242-8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, the Secretary is required to inform the appellant of the information and evidence not of record that (1) is necessary to substantiate the claim, (2) the Secretary will seek to obtain, if any, and (3) the appellant is expected to provide, if any, and to request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). For an increased-rating claim, VA must, at a minimum, notify a claimant that, (1) to substantiate an increased-rating claim, the evidence must demonstrate "a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life" and (2) that if an increase in the disability is found, the rating will be assigned by applying the relevant Diagnostic Codes based on "the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life." The notice must also provide examples of the types of medical and lay evidence that may be obtained or submitted. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Such notice was not provided in this case. Although the appellant received inadequate preadjudicatory notice, and that error is presumed prejudicial, the record reflects that the purpose of the notice was not frustrated. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); Vazquez-Flores, supra. In a July 2004 letter, the RO stated that to establish entitlement to an increased evaluation for his service- connected disabilities, the evidence must show that his service-connected condition "had gotten worse." The letter also explained that the VA was responsible for (1) requesting records from Federal agencies, (2) assisting in obtaining private records or evidence necessary to support his claim, and (3) providing a medical examination if necessary. The October 2004 rating decision explained the criteria for the next higher disability rating available for the service- connected disabilities under the applicable diagnostic codes. The March 2006 statement of the case provided the appellant with the applicable regulations relating to disability ratings for his service-connected disability, as well as the requirements for an extraschedular rating under 38 C.F.R. § 3.321(b) and stated that, pursuant to 38 C.F.R. § 4.10, disability evaluations center on the ability of the body or system in question t function in daily life, with specific reference to employment. A March 2006 letter advised the veteran of the information and evidence necessary to substantiate a claim for an increased evaluation as well as effective dates. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the record shows that the appellant is currently represented by a Veteran's Service Organization and its counsel and had been represented throughout most of the adjudication of the claim on appeal. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate his claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. See Sanders, 487 F.3d at 489. VA has obtained the veteran's service medical records, VA medical records and afforded him physical examinations. He has not requested VA's assistance in obtaining any evidence. All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis 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 (West 2002); 38 C.F.R. Part 4 (2007). 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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Intervertebral disc syndrome (preoperatively or postoperatively) will be evaluated under 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 method results in the higher evaluation when all disabilities are combined under § 4.25. According to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes: A 10% rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20% rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40% rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60% rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1: For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note 2: If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007). Under Diagnostic Code 5242 degenerative arthritis of the spine (see also, Diagnostic Code 5003), is evaluated under the following 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: A 10% evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of t he cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. A 20% rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30% evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40% rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50% evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100% rating requires evidence of unfavorable ankylosis of the entire spine. Note 1: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note 2: (See also Plate V) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note 3: In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note 4: Round each range of motion measurement to the nearest five degrees. Note 5: For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 6: Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2007). The veteran filed a claim for increased rating in April 2004. Of record is a February 2004 VA medical record pertaining to the veteran's low back disability. At the time, the veteran complained of chronic low back pain that radiated into his left hip area and down the lower extremity. He also reported some occasional weakness sin the left knee area. The examiner noted similar problems for some time and that the present episode flared about one month prior to the examination. Examination revealed some tenderness over the low lumbar area with a question of an offset that was a step in the lumbar column suggesting a spondylolisthesis. The sacroiliac joints and sacroiliac notches were non-tender. Range of motion of the low back was fair to good with some discomfort at the extremes. Bilateral straight leg raising was negative. Muscle strength was good at the hip, hamstring, quadriceps and in the dorsi and plantar flexion of the ankle. Sensation was intact. Deep tendon reflexes were equal and active bilaterally. The impression was chronic low back pain with flare suggesting by exam, spondylolisthesis and confirmed by X-rays. A follow up note dated in March continues this diagnosis and also reflects degenerative disc disease. It also discusses the possibility of back surgery. An April 2004 VA record contains discussion of a recent MRI of the veteran's low back. MRI revealed bilateral L5 spondylolysis with grade 1 spondylolisthesis. There was also bilateral L5 nerve root impingement appearing to be present in the foramina. There was osteoarthritis at the L4-L5 facet joints with mild canal stenosis. Also noted was unusual fluid in the intraspinous space at L4-L5, which could have been the result of trauma and ligamentous injury, possibly impingement or Baastrup's disease. It was noted that the veteran was very physical, exercised almost daily and had well-developed musculature and that his only limiting activity was daily low back pain. Surgery was discussed. In July 2004, the veteran was provided a VA examination with respect to his low back disability. At the time, the veteran described his pain as dull, aching and on and off, with an intensity of 2-3/10, ranging to 10 on occasion. He denied receiving any treatment for his low back disability. He described flare-ups precipitated by bending or standing for a long time. The examiner described additional limitation of motion of 10 percent, caused by these flare-ups. There was no erectile, bladder or bowel dysfunction. The veteran did not use an assistive device and denied injury and surgery. The examiner noted that all of the activities of daily life were within normal limits and that the veteran's job as not precluded by his condition, but that his job did cause aggravation of the condition. Examination showed forward flexion was from zero to 78 degrees. Extension was from zero to 28 degrees. Bilateral lateral flexion was from zero to 28 degrees. Left lateral rotation was from zero to 44 degrees. Right lateral rotation was from zero to 42 degrees. There was no painful motion elicited during the examination, as well as no evidence of muscle spasm or ankylosis. Repetitive flexion produced no loss of motion, but did produce pain. Neurological examination was within normal limits. Lasegue's sign was bilaterally negative. Reflexes were within normal limits. There were no vertebral fractures. There was no Waddell sign. The examiner diagnosed degenerative disc disease of the lumbosacral spine involving the level L5-S1, L3-L4, L4-5 with mild degenerative disc disease, facet osteoarthritis at the level of L4-L5, anteriolisthesis grade I at L5-S1 and meralgia parasthetica, right side involving the lateral cutaneous branch of the right femoral nerve. An addendum noted that an EMG/NCV failed to identify any radiculopathy due to disc disease. Shortly after filing his claim for an increased evaluation, the veteran submitted an August 2004 letter in which he described the symptomatology associated with his low back disability. He reported very sharp pain in his low back that radiated down his right leg, which would cause this leg to buckle on occasion. He described the pain as 7/10 and stated that the pain would flare to 8 or 9 sometimes. He related that surgery on his low back had been recommended, but that he declined surgical intervention due to associated risks. A November 2005 VA medical record notes a complaint of worsening bilateral lower extremity parasthesias and buckling of the legs, with right greater than left. Surgery was once again discussed, but the veteran refused to undergo surgery. A fresh MRI, EMG and neurosurgery consultation was recommended. The veteran received his last VA examination in December 2006. At the examination, the veteran reported low back pain radiating to the right leg of constant duration. He described the pain as aching to electrical and varying in intensity. He stated that the intensity averaged 5-6/10 and that about twice a month it would flare to 8/10, lasting from 2 to 12 hours, during which time he would have to decrease physical activity and rest to recover. He denied treatment and taking medication at the time. He also reported flare- ups several times a week, lasting 2 to 12 hours. There were no complaints of bowel, bladder or erectile dysfunction. He was able to walk unaided and used no back brace. He reported being able to walk two to three blocks, but then had to rest for five to ten minutes. He was not unstable and had not sustained any injuries from falls. He drove unlimited. He was unable to perform contact sports or run and jump. He reported having missed about 9 days of work in the past year due to lower back pain. Physical examination showed an alert, cooperative, well- developed, well-nourished male in no acute distress. Inspection of the spine showed that it was straight. The veteran had good posture and was able to walk without significant limp or list. He was able to toe and heel gait. He had good motor control; however, with toe gait he developed complaints of low back discomfort. There was asymmetry of the spine and movement, but smooth rhythm. Flexion was from zero to 80 degrees. Extension was from zero to 30 degrees. Bilateral lateral flexion was from zero to 30 degrees. Bilateral rotation was from zero to 30 degrees. The veteran indicated mild discomfort throughout the entire range of motion. Repetitive movement measurements were taken and it was noted that the veteran developed increasing pain and muscle spasm with mild guarding of the thoracolumbar region. Following repetitive motion, flexion was from zero to 60 degrees; extension was from zero to 20 degrees; bilateral lateral flexion was from zero to 20 degrees; bilateral rotation was from zero to 25 degrees. The veteran indicated increasing discomfort at the end arc of movement. The veteran lost 20 degrees of flexion, 10 degrees of extension, 5 degrees in both right and left lateral flexion and 5 degrees in both right and left rotation. There was evidence of tenderness in the dorsal lumbar area. Guarding and muscle spasm was not significant enough to change the normal gait pattern and there was no change in the spinal curvature. There were no fixed deformities or ankylosis. Neurological examination showed that cutaneous sensation to light touch was intact to the sacral segments of the lower extremities. Motor examination showed no muscular atrophy. The girth measurements of the calves and thighs were equal bilaterally. Muscle tone was satisfactory. Muscle strength was +5 in the hip flexors, knee quadriceps extensors, ankle-dorsiflexors and extensor of the great toe bilaterally. Straight leg raising was positive on the right side. With respect to intervertebral disc syndrome, the examiner noted questionable radiculitis on the right side. Ultimately, the December 2006 examiner diagnosed grade 1-2 spondylolisthesis L4-5, L5, S1 with herniated disc at the L5, S1 right radiculitis with degenerative disc disease at the L5, S1 with residuals. He noted that repetitive movement caused additional loss of motion, as outlined above and that pain caused the major functional impact. The veteran's low back disability has been rated as 20 percent disabling under Diagnostic Code 5242. The Board finds that an evaluation in excess of 20 percent is not warranted. An evaluation of 100 or 50 percent is not established because there is no evidence of ankylosis. With respect to a 40 percent evaluation, it is likewise not established because there is no ankylosis of the thoracolumbar spine and because forward flexion of the thoracolumbar spine is greater than 30 degrees; at most, flexion of the veteran's low back has been limited to 60 degrees, with consideration of pain, flare-ups and repetitive motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). The criteria for a 30 percent evaluation are not for consideration because they apply only to the cervical spine, which is not at issue here. The veteran's low back disability has never caused him an incapacitating episode, as defined by regulation. For these reasons, an evaluation in excess of 20 percent is not warranted for any period of time during the course of the appeal. The veteran's service-connected disability is characterized as including right leg radiculopathy and right radiculitis has been diagnosed. The Board finds that the neurological impairment warrants a separate compensable evaluation. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, 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" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, 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). The Board finds that the evidence supports assignment of a 10 percent evaluation, but no more, for the neurological impairment of the right lower extremity. At the February 2004 VA examination, muscle strength was good at the hips, hamstrings, and quadriceps and in the dorsi and plantar flexion of both ankles and sensation was intact. In March 2004, the veteran was noted to be "very physical" with well-developed musculature. At the July 2004 VA examination, neurological examination was normal; an EMG did not identify any radiculopathy. In November 2005, the veteran complained of worsening lower extremity parasthesias. Upon the most recent VA examination in December 2006, cutaneous sensation to light touch was intact and motor examination showed no muscular atrophy. Muscle strength was 5+ bilaterally. The Board associates findings such as these, showing only decreased sensation, with "mild" incomplete paralysis of the sciatic nerve, rather than "moderate." The evidence does not show objective evidence of nerve impairment related to the veteran's radiculopathy such that a greater than 10 percent rating is warranted. In summary, a separate 10 percent rating is warranted for radiculopathy; however, the preponderance of the evidence reflects that the veteran's service-connected grade I spondylolisthesis L4-5 with herniated nucleus pulposis L5-S1 is no more than 20 percent disabling for the entire period during the pendency of this appeal. See Hart, supra. Consequently, the benefit-of-the-doubt rule does not apply, and the claim for a rating in excess of 20 percent for grade I spondylolisthesis L4-5 with herniated nucleus pulposis L5- S1, must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 20 percent for grade I spondylolisthesis L4-5 with herniated nucleus pulposis L5-S1 is denied. Entitlement to a separate 10 percent, but no greater, rating for right leg radiculopathy is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs