Citation Nr: 1007013 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 09-12 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbar strain, with degenerative disc disease (DDD). 2. Entitlement to a rating in excess of 10 percent for left leg radiculopathy. 3. Entitlement to a rating in excess of 10 percent for residuals of a fracture of the distal left radius. 4. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The appellant is a veteran who served on active duty from April 1972 to April 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO), that denied service connection for a neck disability; a rating in excess of 20 percent for lumbar strain, with DDD; a rating in excess of 10 percent for left leg radiculopathy; and a rating in excess of 10 percent for the residuals of a wrist fracture. The issue of entitlement to service connection for a cervical spine disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action on his part is required. FINDINGS OF FACT 1. At no time during the appeal period has the Veteran's service connected low back disability been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less or by favorable ankylosis of the entire thoracolumbar spine; incapacitating episodes with a total duration of at least 4 weeks in a prior 12 month period are not shown. 2. At no time during the appeal period, is the Veteran's left leg radiculopathy shown to have resulted in impairment greater than mild incomplete paralysis. 3. Throughout the appeal period, the residuals of a fracture of the left distal radius are manifested by limitation of motion, 30 degrees of dorsiflexion, 40 degrees of palmar flexion, 15 degrees of radial deviation, and 30 degrees of ulnar deviation, with pain, but no ankylosis and no X-ray evidence of osteoarthritis. CONCLUSION OF LAW 1. A rating in excess of 20 percent for lumbosacral strain with degenerative disc disease at L4-5 is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71(a), Diagnostic Codes (Codes) 5237, 5243 (2009). 2. A rating in excess of 10 percent is not warranted for the Veteran's left leg radiculopathy. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Code 8520 (2009). 3. A rating in excess of 10 percent is not warranted for the residuals of a fracture of the left distal radius. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Code 5215 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claims. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). February 2007 and January 2008 letters explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The appellant has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. The Veteran's pertinent treatment records have been secured. The RO arranged for a VA examination in February 2008. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). He has not identified any pertinent evidence that remains outstanding. Thus, VA's duty to assist is also met. Accordingly, the Board will address the merits of the claims. B. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Lumbar Strain, with DDD Service connection for lumbar strain, with DDD, rated 20 percent, was awarded by the RO in a June 2005 rating decision. The Veteran claimed an increased rating in November 2006. VA treatment records dated through August 2008 show that the Veteran had complaints of low back pain, with bilateral radicular pain in October 2006 and thereafter. In January 2008, it was noted that he took Vicodin for back pain. Records, however, primarily show treatment for disabilities unrelated to the current appeal. On February 2008 VA examination, the Veteran reported that he had had low back pain since service. He had flare-ups between 70 and 80 percent of the time, with the pain reaching an intensity of a level of 8/10. The pain shot into the left leg and radiated to the left posterior calf and ankle, into the foot. He stated that he could walk a maximum of two blocks, could not lift over 10 pounds, and could stand for no more than 30 minutes. He lay down 5 to 6 hours per day for relief of back pain and took Vicodin three times per day. He used to work as a cook at VA, but stopped working in 2001 because of limitations getting to work and his limitations on lifting. He was, therefore, currently unemployed. It was reported that an MRI study performed in January 2007 showed DDD L4-5 and L5-S!, and left neuroforaminal stenosis. On examination, the Veteran walked with a rather marked antalgic gait. He did not use any assistive devices. There was no obvious spasm of the lumbar spine, but some tenderness in the L5-S1 paravertebral musculature. Range of motion was forward flexion to 65 degrees, with pain; extension backwards to 15 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; and right and left lateral rotation to 20 degrees in each direction. Straight leg raising was negative. Reflexes were normal. The examiner stated that there was no change on repetitive motion, but that pain was a major functional impact. The range of motion was unchanged with repetitions. The assessment was lumbar strain, with DDD of the lumbar spine and left lumbar radiculopathy. The Veteran's back disability has been rated under 38 C.F.R. § 4.71a, Code 5237, for lumbosacral strain, which is rated under the General Formula for Rating Diseases and Injuries of the Spine. His DDD may be rated as intervertebral disc syndrome is rated under the General Formula for Rating Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the rating that is more favorable to the Veteran. 38 C.F.R. § 4.71a, Codes 5237, 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted when there is 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 is not greater than 120 degrees; or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Code 5237. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion are the maximum that can be used for calculation of the combined range of motion. Id., Note (2). Favorable ankylosis is fixation of a spinal segment in the neutral position (zero degrees). Id., Note (5). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 38 C.F.R. § 4.71a, Code 5243, a 20 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating will be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 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. Id., Note (1). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Regarding the General Rating Formula criteria, the evidence does not show the Veteran's forward flexion has been limited to 30 degrees or less at any time during the appeal period. The record is also silent for findings of favorable ankylosis. Even when considering the evidence of pain and functional impairment experienced by the Veteran, his symptoms do not more nearly approximate the criteria for the next higher 40 percent rating. The Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences and what he observes. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. The competent (medical) evidence of record does not show that he has any functional loss beyond what is already being compensated. 38 C.F.R. §§ 4.10, 4.40, 4.45, Deluca supra. Under the Formula for Rating based on Incapacitating Episodes, there is no evidence that the Veteran has experienced an incapacitating episode having a total duration of at least four weeks, but less than six weeks during the past twelve months because of his back disability. Although the Veteran stated on examination that he had "flare-ups" up to 80 percent of the time, the medical evidence of record does not show any severe flares in the last year where he was ordered to bed. VA treatment records throughout the appeal period do not indicate any periods of doctor prescribed bed rest. The Veteran's left leg radiculopathy has already been separately rated and is discussed further below. There is no evidence that the Veteran has any other separate and compensable neurologic abnormalities associated with his low back disability. Hence, the preponderance of the evidence is against a rating in excess of 20 percent for lumbar strain with DDD. The Board has also considered referral of this matter for consideration of an extraschedular rating under 38 C.F.R. § 3.321 is indicated. At all times the manifestations (and associated impairment of function shown) are encompassed by the schedular criteria in Codes 5237 and 5243; therefore, those criteria are not inadequate. Notably, the record does not suggest, nor does the Veteran allege, that his low back disability has required frequent hospitalization, or caused marked interference with employment, or involved other factors of like gravity. Consequently, referral for extraschedular consideration is not in order. See Thun v. Peake, 22 Vet. App. 111 (2008). Left Leg Radiculopathy Service connection for left leg radiculopathy was granted by the RO in June 2005, with an award of a 10 percent rating. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, are to be rated separately, under the appropriate Code. 5237, Note (1). VA treatment records show evidence of bilateral leg radiculopathy. On February 2008 VA examination, there was decreased sensation to light touch in the medial aspect of the right lower leg between the inferior aspect of the medial knee and medial malleolus. There was reduction in strength of the left lower leg. Strength of the left ankle in dorsiflexion and in plantar flexion was at 4/5. There was decreased sensation to light touch across the medial aspect of the left foot. Strength of the extensor halluses longus musculature on the left side was 4/5 when compared to the right. The assessment included left lumbar radiculopathy. The Veteran's left leg radiculopathy is rated under Code 8520 (for impairment of the sciatic nerve). 38 C.F.R. § 4.124a. Incomplete paralysis of the sciatic nerve warrants a 10 percent rating when mild, a 20 percent rating when moderate, a 40 percent rating when moderately severe, and a 60 percent rating when severe, with marked muscular atrophy. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. After careful review of the evidence, and with consideration of the benefit of the doubt doctrine, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left leg radiculopathy. While the Veteran clearly has neurological impairment of the left lower extremity, the impairment is primarily sensory, with lack of strength to be near normal. Moreover, the record shows that reflexes are normal. Therefore, a preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left leg radiculopathy and it must be denied. Although it is demonstrated that the Veteran also has some sensory deficits in the right leg, there is no demonstration of lack of strength and reflexes are, again, shown to be normal. As such, mild incomplete paralysis is not demonstrated and a separate compensable rating for right leg radiculopathy is not shown to be warranted at this time. See 38 C.F.R. § 4.31. The Board has also considered referral of this matter for consideration of an extraschedular rating under 38 C.F.R. § 3.321 is indicated. At all times the manifestations (and associated impairment of function shown) are encompassed by the schedular criteria in Code 8500; therefore, those criteria are not inadequate. Notably, the record does not suggest, nor does the Veteran allege, that his left leg radiculopathy has required frequent hospitalization, or caused marked interference with employment, or involved other factors of like gravity. Consequently, referral for extraschedular consideration is not in order. See Thun v. Peake, 22 Vet. App. 111 (2008). Left Distal Radius Fracture Residuals The Veteran sustained a left wrist injury in service; and service connection for residuals of a fracture of the left distal radius (rated 0 percent) was awarded by an July 1988 decision. An November 2003 rating decision increased the rating to 10 percent. The Veteran claimed in increased rating in November 2006. Service treatment records (STRs) show that the Veteran is right handed. Outpatient treatment records do not show specific treatment for any associated disability of the left wrist. On February 2008 VA examination, the Veteran stated that he had frequent flares of pain, but was not able to indicate how frequent or for how long. He stated that he was unable to hold things in his left hand. He had difficulty using his left wrist for any useful activity. On examination, the left wrist was slightly tender across the ulnar border. Range of motion of the wrist was to 30 degrees extension and to 40 degrees flexion. He was able to do this motion three times with some complaint of pain, but no additional limitation of motion. There was 15 degrees radial deviation and 30 degrees ulnar deviation. Handgrip was normal. The assessment was left wrist fracture, by patient's history. The left distal radius fracture residuals have been rated 10 percent under 38 C.F.R. § 4.71a, Code 5215. Under this Code, limitation of motion is rated 10 percent for either a major or minor extremity, with dorsiflexion less than 15 degrees or with palmar flexion limited in line with the forearm. The current 10 percent rating is the maximum schedular rating under Diagnostic Code 5215. The criteria for the next higher rating, 20 percent for a minor extremity and or 30 percent for a major extremity, for ankylosis of the wrist under 38 C.F.R. § 4.71a, Code 5214, requires favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion. Based on the clinical findings to include the absence of ankylosis of the left wrist, the criteria for the next higher rating have not been met. The Board has considered the findings of pain with limitation of motion on examination. The record does not include credible objective evidence to show that pain on use or during flare-ups results in ankylosis, or limitation of motion approaching ankylosis. Neither is additional functional limitation to the extent that the left wrist disability would be more than 10 percent disabling. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). There are no other rating criteria by which the Veteran would be more appropriately evaluated in terms of his left distal radius fracture residuals. As criteria for a higher rating have not been demonstrated, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). The Board has also considered referral of this matter for consideration of an extraschedular rating under 38 C.F.R. § 3.321 is indicated. At all times the manifestations (and associated impairment of function shown) are encompassed by the schedular criteria in Code 5215; therefore, those criteria are not inadequate. Notably, the record does not suggest, nor does the Veteran allege, that his left wrist disability has required frequent hospitalization, or caused marked interference with employment, or involved other factors of like gravity. Consequently, referral for extraschedular consideration is not in order. See Thun v. Peake, 22 Vet. App. 111 (2008). Consideration of a Total Rating based on Individual Unemployability due to Service Connected Disabilities (TDIU) The record does not suggest that the Veteran's low back, left leg and left wrist disability picture is such that it places him outside the norm, or that by virtue of the service connected disability alone that he is precluded from engaging in gainful employment. It is noteworthy that the Veteran has additional nonservice-connected physical disabilities the effect of which may not be considered in determining his eligibility for a TDIU rating. Consequently, referral for extraschedular consideration of TDIU is not warranted. ORDER A rating in excess of 20 percent for lumbar strain, with DDD, is denied. A rating in excess of 10 percent for left leg radiculopathy is denied. A rating in excess of 10 percent for residuals of a fracture of the distal left radius is denied. REMAND The Veteran is also claiming service connection for a cervical spine disability. His STRs show that he had complaints of thoracic spine pain in April 1972 and was treated for back pain in April 1973 after having been involved in an automobile accident one month earlier. Service connection has been established for a low back disability, in part, based upon this history of a motor vehicle accident (MVA). Postservice treatment records include X-rays that show degenerative changes in the cervical spine. The record does not include a medical opinion as to whether any current cervical spine disability is related to the complaints or injuries noted in service. Consequently an examination to secure such opinion is necessary for a proper adjudication of the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for an orthopedic examination to ascertain the nature and likely etiology of any current cervical spine disability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on claims file review and examination of the Veteran, the examiner should provide an opinion responding to the following: (a) Does the Veteran have a chronic cervical spine disability? (b) If the Veteran's does have such a disability, is it at least as likely as not (50% or better probability) that it is related to his complaints or injuries noted during service? The examiner must explain the rationale for all opinions given. 2. The RO should then readjudicate the matter. If it remains denied, the RO should issue an appropriate SSOC, and afford the Veteran and his representative the opportunity to respond before the case is returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2009). ____________________________________________ M. W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs