Citation Nr: 1035233 Decision Date: 09/17/10 Archive Date: 09/21/10 DOCKET NO. 07-10 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an initial rating higher than 20 percent for service-connected chronic lumbar strain with degenerative disc disease, on a schedular basis. 2. Whether a separate rating is warranted for radiculopathy of the left leg prior to May 12, 2010 and whether a separate rating in excess of 40 percent is warranted from May 12, 2010. 3. Entitlement to an initial rating higher than 20 percent for service-connected chronic lumbar strain with degenerative disc disease, on an extraschedular basis. 4. Entitlement to a total rating based on individual unemployability (TDIU) rating. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran & B.M. ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The Veteran requested a hearing before the Board. The requested hearing was conducted in September 2007 by the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2009, the Board remanded this claim for additional development. Following this development, the RO, in June 2010 granted a separate rating of 40 percent for radiculopathy of the left leg, under Diagnostic Code 8520, effective from May 12, 2010, finding that such was part of the service-connected back disability. The Board finds that this is part of the Veteran's claim for an increased rating for the service-connected back disorder and as such, this aspect of the claim will be discussed below. The Board observes that the claims file raises the claim for a TDIU rating. This is part of the Veteran's claim for an increased rating for the service-connected lumbar disability. As such, the Board has jurisdiction over this issue. The issues of entitlement to TDIU and entitlement an initial rating higher than 20 percent for service-connected chronic lumbar strain with degenerative disc disease, on an extraschedular basis, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT 1. The Veteran's chronic lumbar strain with degenerative disc disease is not manifested by a forward flexion of the thoracolumbar spine 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least four weeks but less than 6 weeks during the past twelve months. 2. The Veteran's radiculopathy of the left lower extremity more nearly approximates moderately severe incomplete paralysis of the sciatic nerve effective from September 8, 2005. CONCLUSION OF LAW 1. The criteria for an initial rating higher than 20 percent for the Veteran's chronic lumbar strain with degenerative disc disease are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2009). 2. The criteria for the assignment of a 40 percent rating for radiculopathy of the left leg are met, effective from September 8, 2005. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243, 4.124a, Diagnostic Code 8520 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The VA has a duty to provide specific notification to the Veteran and assist him with the development of evidence pursuant to the Veterans Claims Assistance Act (VCAA). The Veteran's claim for an initial rating higher than 20 percent for service-connected chronic lumbar strain with degenerative disc disease arises from his disagreement with the initial evaluation following the grant of service connection. It has been held that once service connection is granted, the claim is substantiated and additional notice is not required. Any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained. 38 U.S.C.A. § 5103A. VA has associated service treatment records, post-service private medical records and VA outpatient records with the claims folder. Additionally, the Veteran was afforded VA examinations pertinent to the issue on appeal. In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claim. II. Entitlement to an Initial Rating Higher than 20 Percent for Service-Connected Chronic Lumbar Strain with Degenerative Disc Disease Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The determination of whether an increased evaluation is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board notes that the appeal for a higher evaluation arises from the initial rating decision that established service connection for the lumbar disability and assigned the initial disability evaluation. Therefore, the entire rating period is to be considered, including the possibility of staged ratings (i.e., separate ratings for separate periods of time) based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The issue has been characterized accordingly. The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The Veteran is currently rated as 20 percent disabled under 38 C.F.R. §4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Code 5237. A rating of 20 percent is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The Veteran is seeking an increased rating. A rating of 40 percent is warranted when there is forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Id. A rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. Id. The Veteran was afforded a VA examination in February 2006. The Veteran reported that he was unable to continue working due to his back problems but that he remains active, working around the house building furniture and helping his children with minor construction. The Veteran also reported constant ache and stiffness of his lower back that was intensified with prolonged weight bearing, particularly when standing on concrete. Any repetitive bending or lifting also exacerbates the pain. There were no reported flare-ups, just day-to-day discomfort. The Veteran did not describe any back-related sphincter problems and he did not use any walking or assistive devices. The examiner stated that the Veteran did not describe any true radicular component; however, the examiner stated that the Veteran did note some referred pain into his lower extremities. Physical examination revealed the Veteran walked with a broad-based gait and a flattening of his lumbar curve. There was a hint of lumbar paravertebral muscle spasm. The Veteran could toe and heel stand without difficulty. Range of motion was 0 to 60 degrees of flexion with tightness at the end point, hyperextension 0 to 15 degrees, side bend to either side 0 to 30 degrees, and rotation bilaterally 0 to 50 degrees, all with tightness at the end point. Deep tendon reflexes were physiologic and sensation was intact to pinprick and light touch in the lower extremities with no dermatomal involvement. Muscle strength testing of the lower extremities was normal. The examiner estimated that with repetitive bending or heavy lifting, the Veteran's range of motion would be reduced to 0 to 40 degrees flexion, hyperextension 0 to 10 degrees, secondary to pain and stiffness. X-rays revealed degenerative disc disease, with tight disc space and foraminal narrowing from L4 through S1. The Veteran was afforded his most recent VA examination in May 2010. The Veteran reported that he worked as a contractor for a number of years but gave it up because of ongoing back pain. He reported sharp, aching back pain that radiated into his left buttock and leg. Flare-ups were reported to occur every one to two months, lasting three to seven days. Physical examination revealed the Veteran's posture and gait were normal and there were no abnormal spinal curvatures. There was no thoracolumbar spine ankylosis. There was noted spasm in the right side, pain with motion and tenderness. Ranges of motion were 0 to 60 degrees of flexion, 0 to 15 degrees of extension, 0 to 20 degrees of bilateral flexion and rotation. There was noted pain upon repetition, which limited flexion range of motion to 50 degrees. The Veteran was diagnosed with degenerative disc disease, degenerative joint disease of the lumbar spine L4-S1 and left sciatic nerve radiculopathy of the left leg. The examiner stated the Veteran did not have intervertebral disc syndrome. The Board has considered all applicable statutory and regulatory provisions, to include 38 C.F.R. §§ 4.40 and 4.59, as well as the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain, particularly in light of the fact that the Veteran contends his disability is essentially manifested by pain. Under 38 C.F.R. § 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in. Hicks v Brown, 8 Vet. App. 417, 421 (1995). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). For a 40 percent evaluation, flexion must be actually or functionally limited to 30 degrees or less or there must be favorable ankylosis of the entire thoracolumbar spine. During the February 2006 VA examination, the Veteran's actual forward flexion was 60 degrees, with a predicted range of 40 degrees, restricted by pain. During the May 2010 VA examination the Veteran had a forward flexion of 60 degrees, with pain starting at 50 degrees. The Veteran also did not have favorable ankylosis of the entire thoracolumbar spine at any time during the appeal. Thus, the Board finds that the current 20 percent evaluation, considering the principles of 38 C.F.R. § 4.40 and 4.45, fully and appropriately contemplates the degree of limited flexion that would exist during periods of exacerbation. Alternatively, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes allows a rating of 40 percent where there is 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. For the purposes of evaluating the Veteran's disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). However, there has been no documentation of incapacitating episodes requiring bed rest prescribed by a physician in the post-service treatment records, and the VA examiner from May 2010 specifically stated that the Veteran does not have intervertebral disc syndrome. See May 2010 VA examination. Moreover, there are no examination reports or treatment records of incapacitating episodes as defined by the regulations. The current regulations also allow for separate neurological evaluations. The Board notes that the Veteran was found to have left sciatic nerve radiculopathy of the left leg during the May 2010 VA examination. In a June 2010 rating decision, the RO awarded a separate rating for left sciatic nerve radiculopathy and assigned a 40 percent rating under Diagnostic Code 8520, effective May 12, 2010. Diagnostic Code 8520 provides a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve. The Board finds that based on the Veteran's lay statements and examinations of record that the 40 percent rating should be assigned effective from September 8, 2005, the date of his initial claim of service connection for a back disability. In this regard, the Board notes that when examined in 2006, he complained of lower extremity discomfort and during the 2007 Board hearing he complained of pain and numbness of the lower extremity. These complaints were described as a moderately severe impairment of the sciatic nerve on VA examination in May 2010. As his complaints have been consistent throughout the appeal period, the Board finds that the separate rating of 40 percent under Diagnostic Code 8520 should be effective September 8, 2005, the date of his initial claim of service connection. The Board finds that a review of the record fails to demonstrate severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. As such, the next higher rating of 60 percent under Diagnostic Code 8520 is not warranted. Moreover, the evidence does not demonstrate that additional neurological ratings are warranted. During the February 2006 and May 2010 VA examinations, the Veteran did not report urinary incontinence, urgency, retention, frequency, nocturia, fecal incontinence, constipation, leg or foot weakness, falls or unsteadiness. The only reported neurological symptoms were diagnosed as a left sciatic nerve radiculopathy, which as stated previously, is already service-connected. For these reasons, an additional separate rating is not warranted for any neurological symptomatology. The Veteran's private treatment records and VA outpatient records document complaints and treatment of low back pain but do not offer any specific evidence to justify that the Veteran is entitled to a rating higher than 20 percent. The Board has also considered whether the Veteran is entitled to a higher rating based on any other applicable diagnostic codes, including Diagnostic Code 5003; however, the highest rating available under Diagnostic Code 5003 is 20 percent and the Board finds that the Diagnostic Code for a lumbosacral strain is the most appropriate for evaluating the Veteran's service-connected chronic lumbar strain with degenerative disc disease. The Veteran testified in September 2007 that his back prevents him from doing household activities and it is very painful. See September 2007 BVA Transcript. The Veteran's friend also submitted a letter in March 2009 describing the Veteran's pain and discomfort. The Board has considered the Veteran's statements as well as the statement from his friend regarding the severity of his back and how it has affected his daily activities. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's statements to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). However, the Board finds that the most probative evidence concerning the level of severity of his disability consists of the physical examinations of record. Based upon all evidence of record, the Veteran does not meet the criteria to warrant a 40 percent rating. Additionally, while the requirements of Fenderson have been considered, the evidence of record does not show that the Veteran's lumbar back disability has warranted an increased rating at any point in the appeal period. For all of these reasons, the Veteran's claim must be denied. ORDER Entitlement to an initial rating higher than 20 percent for chronic lumbar strain with degenerative disc disease is denied. Entitlement to a separate 40 percent rating for radiculopathy of the left leg is warranted from September 8, 2005. REMAND In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. The Veteran claims that he cannot work due to his service-connected back disability. He also claims that when he was working his service-connected back disability interfered with his ability to work. The Board finds that the evidence suggests consideration of an extraschedular rating and the record raises a claim for a TDIU rating. The Board cannot adjudicate these issues in the first instance. Accordingly, the case is REMANDED for the following actions: 1. Give the Veteran appropriate VCAA notice concerning his claims for a TDIU rating and for an extraschedular rating based on the service-connected chronic lumbar strain with degenerative disc disease. 2. Schedule the Veteran for appropriate VA medical examinations to determine the current level of severity of his service- connected disabilities, which to date, are radiculopathy of the left leg, posttraumatic stress disorder, chronic lumbar strain with degenerative disc disease, loss of use of a creative organ, and prostate cancer. The Veteran's claims folder must be made available to and reviewed by the examining physicians. Following the examinations, the examiners should address the following: a) Describe all symptoms caused by the service-connected disabilities, as well as the severity of each symptom. b) The examiners should describe what type of employment activities would be limited due to each of the Veteran's service- connected disabilities and/or due to a combination of his service-connected disabilities. The examiner should not consider impairment from any nonservice-connected disabilities or the Veteran's age when assessing the impairment of employment activities due to service-connected disabilities. The examiner must provide a comprehensive report by including a complete rationale for all opinions and conclusions reached and citing the objective medical findings leading to the conclusions. 3. Refer the claim for an extraschedular rating based on the service-connected chronic lumbar strain with degenerative disc disease disability to the Under Secretary for Benefits or to the Director of Compensation and Pension Service, as provided for in 38 C.F.R. § 3.321. 4. Following the adjudication of the claim for a TDIU rating and the claim for an extraschedular rating due to the service- connected back disability, the Veteran and his representative should be provided an SSOC and provided an appropriate opportunity to respond, for any adverse determination. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs