Citation Nr: 1104894 Decision Date: 02/07/11 Archive Date: 02/14/11 DOCKET NO. 09-19 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a disability rating greater than 10 percent for degenerative disc disease, lumbar spine, with L5-S1 annular tear. 2. Entitlement to an initial disability rating greater than 10 percent for intervertebral disc syndrome of the sciatic nerve S1, left lower extremity associated with degenerative disc disease, lumbar spine, with L5-S1 annular tear. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active duty from August 1996 to August 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The case was subsequently transferred to the RO in Los Angeles, California. FINDINGS OF FACT 1. The Veteran's degenerative disc disease, lumbar spine, with L5-S1 annular tear is currently manifested by 65 degrees of flexion with pain. Combined range of motion is greater than 120 degrees and gait and spinal contour are within normal limits. 2. The Veteran's neurological impairment of the sciatic nerve S1, left lower extremity is no more than mildly disabling. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for degenerative disc disease, lumbar spine, with L5-S1 annular tear, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1 -4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2010). 2. The criteria for an initial disability rating greater than 10 percent for intervertebral disc syndrome of the sciatic nerve S1, left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 5243-8520 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal arises out of the Veteran's assertion that his service-connected degenerative disc disease, lumbar spine, with L5-S1 annular tear and intervertebral disc syndrome of the sciatic nerve S1 are more disabling than currently evaluated. Factual Background Service treatment records show that the Veteran initially injured his lumbar spine in July 1998. Specifically, the record shows that the Veteran was lifting a drill bit with partners when the partners let go, causing the entire weight of the heavy drill bit to fall solely on the Veteran. The assessment was lumbar strain. Thereafter, the Veteran complained of low back pain on several occasions. The Veteran's May 2002 separation examination shows an abnormal spine, noting tender mid lower lumbar area. The Veteran filed a claim for service connection for a low back disorder immediately after separation from military service. In a January 2003 rating decision, the RO granted service connection for lumbar strain and assigned a 10 percent disability rating from August 31, 2002, the day after the Veteran's discharge from military service. During a March 2003 VA examination, the Veteran reported that he was employed by the railroad. He complained of pain in the lower back since a 1998 in-service injury and denied any treatment other than medication. Upon physical examination, the Veteran had a normal gait and a level pelvis. He asserted an inability to bend forward and voluntarily limited the range of motion of the lumbar spine to 30 degrees of flexion, neutral extension, 15 degrees of right and left-sided bending with complaints of pain in all motions. His neurological examination was unremarkable with physiologic and symmetrical reflexes, strength and sensation in both lower extremities. Internal and external rotations of the hips as well as pulses were within normal limits and straight leg raising was negative bilaterally. Calf circumferences were symmetrical at 35 cm (centimeters). The Veteran complained of hamstring with straight leg maneuvers. X-ray examination of the lumbar spine was normal. The impression was "history of low back pain." In an April 2003 rating decision, the RO continued a 10 percent disability rating for lumbar strain. The Veteran disagreed with that decision, but did not perfect an appeal. In November 2007, the Veteran submitted a claim for an increased rating for his back disorder. He noted that he had missed several days of work due to pain and lack of mobility. He also submitted an October 2007 VA treatment record noting an MRI showing annular tear at L5-S1 and mild degenerative disc desiccation at L5-S1. The Veteran was afforded a VA examination in June 2008. At that time, he complained of stiffness and numbness. The Veteran denied visual disturbances, weakness, fevers, bladder complaints, malaise, bowel complaints, and dizziness. He stated that he had not lost any weight due to the condition. He complained of pain located in the lower back for the past nine years. The pain occurs constantly and travels down to the legs. The characteristic of the pain is aching, sharp, and cramping and was a level 9 of 10. The pain could be elicited by physical activity and was relieved by medication and Ibuprofen. At the time of pain the Veteran could reportedly function with medication. The Veteran also complained of numbness and tingling in the left leg. He indicated that his condition had not resulted in any incapacitation but indicated that he had to take more frequent breaks at work to relieve the pressure and pain. Physical examination of the thoracolumbar spine revealed posture and gait were within normal limits. The examiner noted evidence of radiating pain on movement described as shooting pain down the left posterior buttocks and down the left posterior thigh with numbness, burning, and tingling. Muscle spasm was present and described as occurring across the mid thoracic spine. There was tenderness noted on examination along the lower lumbar spine. Straight leg raising test was negative on the right but positive on the left. There was no ankylosis of the lumbar spine. Range of motion of the thoracolumbar spine was as follows: flexion to 80 degrees (with pain at 65 degrees), extension to 30 degrees (with pain at 30 degrees), right lateral flexion to 30 degrees (with pain at 30 degrees), left lateral flexion to 30 degrees (with pain at 30 degrees), right rotation to 30 degrees (with pain at 30 degrees), and left rotation to 30 degrees (with pain at 30 degrees). The examiner noted that joint function of the spine was additionally limited by the following after repetitive use: pain, fatigue, weakness, lack of endurance, and pain as the major functional impact. It was not additionally limited after repetitive use by incoordination. The examiner further stated that additional limitation of joint function was zero degrees. Inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curvatures of the spine. There was no lumbosacral motor weakness. There were signs of intervertebral disc syndrome. Neurological examination revealed sensory deficit of the left back of the thigh. The right lower extremity reflexes revealed knee jerk 2+ and ankle jerk 2+. The left lower extremity reflexes revealed knee jerk 2+ and ankle jerk 2+. The examiner identified that the most likely peripheral nerve involved as the sciatic nerve and indicated that the intervertebral disc syndrome did not cause any bowel dysfunction, bladder dysfunction, or erectile dysfunction. Neurological examination of the upper extremities was normal. The examiner indicated that the Veteran's initial diagnosis of "lumbosacral strain" had progressed to degenerative disc disease of the lumbar spine with L5-S1 annular tear and IVDS (intervertebral disc syndrome) of the bilateral sciatic nerve S1. The examiner indicated that the effect of the lumbar spine disorder on the Veteran's usual occupation with the railroad company was that he had difficulty with prolonged standing, walking, bending, and climbing up and down the rail cars. The effect of the condition on the Veteran's daily activities was limitation of physical activity requiring lifting, carrying, doing prolonged standing or walking, bending, or climbing up and down stairs. The Veteran was scheduled for X-ray examination in June 2008 but did not report to this appointment. In the July 2008 rating action on appeal, the RO recharacterized the Veteran's lumbar spine disorder as degenerative disc disease, lumbar spine, with L5-S2 annular tear and continued the 10 percent disability rating previously assigned. The RO also granted service connection for intervertebral disc syndrome of the sciatic nerve, S1, left lower extremity as secondary to the service-connected degenerative disc disease and assigned a 10 percent disability rating effective November 5, 2007, the date of the Veteran's claim for an increased rating. In an August 2008 notice of disagreement, the Veteran indicated that he did report to an appointment for an X-ray of the lumbar spine in June 2008 but left because he was not seen quickly enough and he had to go to work. In a November 2008 response to a November 2008 notice letter from the RO regarding additional evidence to substantiate his claim, the Veteran indicated that "I can't give any statement from my employer because I would have no job." Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. "Staged ratings" or separate ratings for separate periods of time may be assigned based on the facts found following the initial grant of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). The General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243 provides for the rating of disabilities of the spine. Under the General Rating Formula, 100 percent evaluation is appropriate for unfavorable ankylosis of the entire spine; a 50 percent evaluation is appropriate for unfavorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation is appropriate for favorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent evaluation is appropriate for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent evaluation is appropriate where there is 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 10 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the 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 or more of the height. 38 C.F.R. § 4.71a, DC 5237. Intervertebral disc syndrome may be evaluated either under the General 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 38 C.F.R. § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Under Note (1), for purposes of evaluation under DC 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. 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 are zero to 45 degrees, and left and right lateral rotation are 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 are zero to 30 degrees, and left and right lateral rotation are 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. 38 C.F.R. § 4.71a, DC 5235-43, Note (2). Analysis 1. Degenerative disc disease, lumbar spine, with L5-S1 annular tear Given the evidence of record as it pertains to the November 2007 claim for increased rating, the Board finds that a disability rating greater than 10 percent is not warranted for the Veteran's degenerative disc disease, lumbar spine, with L5-S1 annular tear under the scheduler criteria. The Veteran's range of motion does not meet the criteria for a 20 percent rating under DC 5242 as his forward flexion is greater than 60 degrees, both with pain and without pain, and the combined range of motion of the thoracolumbar spine is greater than 120 degrees. The June 2008 VA examination noted muscle spasm but gait and spinal contour were within normal limits. The Board also finds that a disability rating greater than 10 percent is not warranted for the Veteran's lumbar spine disorder under DeLuca. While the June 2008 VA examiner reported additional limitation of joint function after repetitive use the examiner also indicated that this additional limitation resulted in no additional loss of motion. Forward flexion was to 80 degrees, with pain beginning at 65 degrees; still to greater than 60 degrees. Thus, the Board finds that the currently assigned 10 percent rating for the lumbar spine is already taking into consideration the provisions of Deluca. There is also no evidence of incapacitating episodes relating to intervertebral disc syndrome having a total duration of at least two weeks but less than four weeks during the past 12 months. During the June 2008 VA examination the Veteran specifically denied any incapacitating episodes. Thus, a disability rating greater than 10 percent under either DC 5242 or DC 5243 is not warranted. Furthermore, there are no other alternative diagnostic codes under 38 C.F.R. § 4.71a that could apply to the Veteran's lumbar spine disorder. 2. Intervertebral disc syndrome of the sciatic nerve, S1, left lower extremity In the rating action on appeal, the RO granted service connection for intervertebral disc syndrome of the sciatic nerve, S1, left lower extremity as secondary to the service-connected degenerative disc disease and assigned a 10 percent rating under 38 C.F.R. § 4.71a, DC 5243-8520. See 38 C.F.R. § 4.27. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. This hyphenated diagnostic code may be read to indicate that intervertebral disc syndrome (DC 5243) is the service-connected disorder, and it is rated as if the residual condition is paralysis of the sciatic nerve under DC 8520. Under DC 8520, mild incomplete paralysis of the sciatic nerve warrants a 10 percent disability rating, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent disability rating, and severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating. An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. See 38 C.F.R. § 4.121a, DC 8520. 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. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id. Given the evidence of record, the Board finds that a disability rating greater than 10 percent is not warranted for the Veteran's intervertebral disc syndrome of the sciatic nerve S1. As above, during the June 2008 VA examination the Veteran described radiating pain on movement described as shooting pain down the left posterior buttocks and down the left posterior thigh with numbness, burning, and tingling. While the Veteran reportedly has difficulty with prolonged walking, bending, or climbing up and down stairs, neurological examination revealed sensory deficit of the left back of the thigh and ankle and knee jerk 2+, bilaterally. The sensory manifestations are compatible with no more than mild incomplete paralysis of the left leg and warrant no more than a 10 percent disability rating. There are no further objective manifestations of the neurological symptoms that would warrant a higher rating for the left lower extremity. The Board has considered whether other diagnostic codes might allow for a higher disability rating, but finds none that does. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to higher disability ratings for either the Veteran's degenerative disc disease, lumbar spine, with L5-S1 annular tear (formerly referred to as lumbar strain) or intervertebral disc syndrome of the sciatic nerve S1, left lower extremity. 38 C.F.R. § 4.3. Extraschedular Consideration The Veteran is currently employed with railroad and has indicated that he must take frequent breaks at work because of back pain. The discussion above reflects that the symptoms of the Veteran's back disability, including both orthopedic and neurologic manifestations, are contemplated by the applicable rating criteria. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Barringer v. Peake, 22 Vet. App. 242 (2008); Thun v. Peake, 22 Vet. App. 111 (2008). 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, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "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." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Substantially compliant notice was sent in June 2008 and November 2008 letters and the claim was readjudicated in an April 2009 statement of the case. Mayfield, 444 F.3d at 1333. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained a medical opinion as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board although he declined to do so. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER A disability rating greater than 10 percent for degenerative disc disease, lumbar spine, with L5-S1 annular tear (formerly referred to as lumbar strain) is denied. An initial disability rating greater than 10 percent for intervertebral disc syndrome of the sciatic nerve S1, left lower extremity is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs