Citation Nr: 1223398	
Decision Date: 07/06/12    Archive Date: 07/13/12

DOCKET NO.  08-30 043A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to an increased rating for bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine, currently rated 40 percent disabling.

2.  Entitlement to an effective date earlier than October 17, 2007, for the award of a separate 10 percent rating for radiculopathy, left lower extremity associated with bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine.

3.  Entitlement to a total disability rating due to individual unemployability (TDIU), as a result of service-connected disabilities.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel


INTRODUCTION

The Veteran served on active duty from October 1967 to March 1971.

This matter comes to the Board of Veterans' Appeals (Board) from a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a disability rating in excess of 20 percent for bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine; granted entitlement to service connection for radiculopathy, left lower extremity, assigning a 10 percent disability rating effective October 17, 2007; and, denied entitlement to a TDIU.  A notice of disagreement was filed in January 2008 with regard to the disability rating assigned to the lumbar spine disability, the effective date assigned to the grant of service connection for radiculopathy, left lower extremity, and the denial of a TDIU.  A statement of the case was issued in October 2008, and a substantive appeal was received in October 2008.

In a December 2009 rating decision, the RO assigned a 40 percent disability rating to bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine, effective July 27, 2009.  Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned.  AB v. Brown, 6 Vet. App. 35 (1993). 


The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if any further action is required on his part.


FINDINGS OF FACT

1.  Prior to July 27, 2009, the Veteran's service-connected bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine is not productive of limitation of forward flexion to 30 degrees or less; no findings of ankylosis; with no evidence of incapacitating episodes having a total duration of at least 4 weeks during the past 12 months.

2.  From July 27, 2009, the Veteran's service-connected bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine is productive of severe limitation of motion and favorable ankylosis of the thoracolumbar spine, with no objective evidence of unfavorable ankylosis or incapacitating episodes of at least 6 weeks during the past 12 months.

3.  The Veteran filed an increased rating claim for his service-connected lumbar spine disability on November 28, 2006.

4.  It is factually ascertainable that radiculopathy, left lower extremity, was shown on August 31, 2006.  



CONCLUSIONS OF LAW

1.  Prior to July 27, 2009, the criteria for entitlement to a rating in excess of 20 percent for bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine have not been met.  38 U.S.C.A. §§ 1155, 5107(b), 5121 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71(a), Diagnostic Codes 5235 - 5243 (2011).

2.  From July 27, 2009, the criteria for entitlement to a rating in excess of 40 percent for bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine have not been met.  38 U.S.C.A. §§ 1155, 5107(b), 5121 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.71(a), Diagnostic Codes 5235 - 5243 (2011).

3.  The criteria for an effective date of August 31, 2006 for the award of a separate compensable rating for radiculopathy, left lower extremity, have been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  

In January 2007, a VCAA letter was issued to the Veteran with regard to his increased rating claim which predated the December 2007 AOJ decision.  Id.  The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claims, the information and evidence that must be submitted by the claimant, what information and evidence will be obtained by VA, and the types of evidence necessary to establish an effective date.  Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board acknowledges a decision from the Court that provided additional guidance on the content of the notice that is required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) in claims involving increase compensation benefits.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008).  The Board points out that the U.S. Court of Appeals for the Federal Circuit reversed the Court's holding in Vazquez, to the extent the Court imposed a requirement that VA notify a Veteran of alternative diagnostic codes or potential "daily life" evidence.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  In September 2008 and June 2009, the Veteran was issued Vazquez letters, thus this constitutes proper notice.

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The Board also finds that VA has complied with all assistance provisions of VCAA.  The evidence of record contains the Veteran's VA outpatient and private treatment records and records from the Social Security Administration (SSA).  He underwent VA examinations in October 2007 and July 2009 with regard to his lumbar spine disability and associated radiculopathy.  The Board finds that such examination reports are thorough and contain sufficient information to decide the increased rating issues on appeal.  See Massey v. Brown, 7 Vet. App. 204 (1994).

For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the increased rating and effective date issues on appeal.

Criteria & Analysis

Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 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.  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 

It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  

Lumbosacral or cervical strain is evaluated under DC 5237.  Degenerative arthritis of the spine is evaluated under DC 5242.  Intervertebral disc syndrome is evaluated under DC 5243.

The general rating formula provides for the following disability ratings for diseases or 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.  It applies to Diagnostic Codes 5235 to 5243 unless the disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

For purposes of this case, the Board notes that under the general rating formula for diseases and injuries of the spine, ratings are assigned as follows:

1)  10 percent - 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;

2)  20 percent - 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;

3)  30 percent - Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine;

4)  40 percent -- Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine;

5)  50 percent -- Unfavorable ankylosis of the entire thoracolumbar spine; and

6)  100 percent -- Unfavorable ankylosis of the entire spine.

Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated 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 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.

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.

The DC's for the spine are as follows:  5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also diagnostic code 5003); 5243 Intervertebral disc syndrome.

Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either 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.  See 38 C.F.R. § 4.25 (combined ratings table).

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order.  Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

DC 5003, for degenerative arthritis provides that degenerative arthritis, established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200, etc.).  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003.  38 C.F.R. § 4.71a, DC 5003.

Service connection is in effect for bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine, rated 20 percent disabling effective September 21, 2004.  On November 28, 2006, the Veteran filed an increased rating claim.  In a March 2007 rating decision, the RO assigned a total temporary 100 percent rating pursuant to 38 C.F.R. § 4.30 based on surgical or other treatment necessitating convalescence, effective November 2, 2006.  On such date he underwent surgery on his lower back, with disc removal and fusion at L4-L5-S1.  A 20 percent disability rating is in effect from April 1, 2007, and a 40 percent disability rating is in effect from July 27, 2009.  The Veteran's disability is rated pursuant to Diagnostic Code 5239, pertaining to spondylolisthesis or segmental instability of the spine.

In consideration of the general rating criteria for diseases of the spine, for the period prior to July 27, 2009, a disability rating in excess of 20 percent is not warranted based on review of the evidence of record.  On examination in October 2007, forward flexion was to 45 degrees passive and extension was to 5 degrees.  Bilateral lateral bending was to 20 degrees, and bilateral rotation was to 20 degrees.  On repetitive motion, he had increased pain, easy fatigability, lack of endurance, and decreasing flexion and extension by four or five more degrees.  There is a private medical record dated in October 2007 one year post-operative status post L4 through S1 decompression fusion and it is noted that he is doing well with some aching in the back but there are no range of motion findings.  There is another private medical record dated in April 2008, 17 and a half months post-operative and he continues to have some low back pain, but stated that he was active.  There are no range of motion findings.  There are no other treatment records or examination reports for the period April 1, 2007, to July 26, 2009.  The Board acknowledges that there are treatment records for the period prior to April 1, 2007, which reflect a finding of flexion 30 degrees or less; however, a 100 percent temporary total rating was in effect for this period.  In light of the objective findings documented from April 1, 2007, to July 26, 2009, the Board finds that the 20 percent rating assigned is appropriate under the rating criteria for the period prior to July 27, 2009.  A 40 percent rating is not warranted for this period, as range of motion testing does not reflect forward flexion of the thoracolumbar spine 30 degrees or less, even in consideration of repetitive motion.  As detailed, with repetitive motion, his flexion was reduced to 40 degrees.  As such, based on the objective findings of record, the Veteran's disability does not meet the criteria for a disability rating in excess of 20 percent for the period prior to July 27, 2009.

With regard to the criteria for rating intervertebral disc syndrome, the Board notes that separate compensable ratings have been assigned for radiculopathy, left lower extremity, effective August 31, 2006 (see below), and radiculopathy, right lower extremity, effective June 23, 2009.  The October 2007 VA examination report reflects mild spasm of paravertebral muscles but does not otherwise reflect any other neurological symptoms such as bowel or bladder impairment.  There is no showing of right lower extremity radiculopathy prior to June 23, 2009.  While the Veteran complained of pain and limitation of motion, the examination report does not reflect any specific reports of incapacitating episodes nor prescribed bedrest by a physician, and the Board notes that the Veteran denied any incapacitating episodes at the time of the July 2009 VA examination.  Likewise, the private treatment records for this period do not reflect incapacitating episodes or bedrest prescribed by a physician.  The medical evidence does not reflect incapacitating episodes of at least 4 weeks but less than 6 weeks.  Based on the medical evidence, a disability rating in excess of 20 percent is not warranted under the formula for rating intervertebral disc syndrome based on incapacitating episodes for the period prior to July 27, 2009.

The Diagnostic Code explicitly take pain upon motion into account, however, the Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40, 4.45 would warrant a higher rating.  See Spurgeon v. Brown, 10 Vet. App. 194 (1997).  As detailed, the VA examination report reflects increased pain, easy fatigability, and lack of endurance on repetitive motion, and an additional limitation of 5 degrees.  While acknowledging the Veteran's functional limitations, such symptomatology has been considered in assigning the 20 percent disability rating for the period prior to July 27, 2009.  The 20 percent disability rating adequately compensates him for his pain and functional loss for the period prior to July 27, 2009.

With regard to the period from July 27, 2009, in which a 40 percent rating is in effect in contemplation of flexion of 30 degrees or less, as detailed under the general rating formula for injuries of the spine, a 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  The July 2009 VA examination report reflects that there is thoracolumbar spine ankylosis affecting part of the thoracolumbar spine.  Though the joint was not ankylosed, it was noted that the spine was ankylosed.  The examiner noted that the position of the thoracolumbar spine is neutral.  It was specified that the Veteran could flex and extend the spine to 8 degrees and rotate to at least 6 degrees and laterally bend to at least 8 degrees, repetitively, with pain on motion.  The indications of unfavorable ankylosis are when the spine is fixed in extension (bent backward) or flexion (bent forward).  Here, to the extent the spine is ankylosed, it is not fixed in a forward or backward position and may not be termed unfavorable.  Based on such objective finding of no unfavorable ankylosis, a 50 percent disability rating is not warranted.  

With regard to the rating criteria for intervertebral disc syndrome, the July 2009 VA examination report reflects flare-ups every two to three weeks but does not reflect incapacitating episodes, to include having a total duration of at least 6 weeks during the past 12 months due to his service-connected low back disability.  Thus, a rating higher than 40 percent is not warranted under the formula for rating intervertebral disc syndrome based on incapacitating episodes.  The medical records available do not reflect incapacitating episodes, to include bedrest prescribed by a physician.  

The Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40, 4.45 would warrant a higher rating for the period from July 27, 2009.  See Spurgeon v. Brown, 10 Vet. App. 194 (1997).  The Board finds, however, that the 40 percent disability rating adequately compensates him for any subjective complaints of pain and functional loss as a result of his service-connected disability, and is the highest schedular rating (40 percent) for limitation of motion of the thoracolumbar spine.

The Board has given consideration to whether the Veteran's lumbar spine disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Here, the rating criteria reasonably describe the Veteran's disabilities levels and symptomatology, and provides for a greater evaluation for additional or more severe symptoms; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted.  The Veteran's claim for a TDIU is addressed in the Remand below.

Earlier effective date

The law pertaining to the effective date of a VA claim for increase in disability mandates that unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  The pertinent statute then goes on to specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if any application is received within one year from such date.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o).  If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim.  In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase.  See generally Harper v. Brown, 10 Vet. App. 125 (1997).

On November 28, 2006, the Veteran filed an increased rating claim for service-connected lumbar spine disability.  As detailed hereinabove, in a March 2007 rating decision, the RO assigned a total temporary rating pursuant to 38 C.F.R. § 4.30 based on surgical or other treatment necessitating convalescence effective November 2, 2006, and assigned a 20 percent disability rating effective April 1, 2007.  On November 2, 2006, he underwent surgery on his lower back, with disc removal and fusion at L4-L5-S1.  In a December 2007 rating decision, the RO continued the 20 percent disability rating assigned to the lumbar spine, and granted a separate compensable rating for radiculopathy, left lower extremity, assigning a 10 percent disability rating, effective October 17, 2007.  The Veteran asserts that the effective date assigned should correspond to the date of receipt of the November 28, 2006 increased rating claim.  

The October 17, 2007, VA examination report reflects an assessment of grade I spondylolisthesis of L5 on S1 and bilateral spondylolytic defect with radiculitis in left.  The examiner noted that there was radiation of lower back pain to left lower leg.  Straight-leg raising was negative from sitting position.  Thus, the effective date of October 17, 2007, assigned to radiculopathy, left lower extremity, corresponds to the objective findings reflected in the VA examination report.

The Board finds, however, that private treatment records show subjective complaints of left lower extremity symptoms prior to October 17, 2007, and objective findings which suggested radiculopathy.  

Specifically, an August 31, 2006 private treatment record reflects complaints of left lower extremity pain, left worse than right.  The examiner noted spondolytic spondylolisthesis compression.  The assessment was spondylolisthesis sciatica.

A September 20, 2006 private treatment record reflects that the Veteran sought treatment for back and leg pain.  He reported several years of back and leg symptoms, worse on the left.  It was described as aching and stabbing in nature.  On physical examination, manual motor strength testing revealed 5/5 motor strength in the lower extremities from the iliopsoas to the EHL.  Sensation was grossly intact to light touch.  He had facet tenderness at the L5-S1 level and did have a positive straight-leg raise on the left side.  The assessment was degenerative disc disease at L4-5, L5-S1, as well as spondylolisthesis and stenosis.  

As detailed, the August 31, 2006 treatment records contain a diagnosis of sciatica with complaints of left lower extremity pain, and findings suggestive of left lower extremity radiculopathy in the September 20, 2006 treatment record.  The subjective complaints and objective findings reflected are consistent with the findings documented in the October 2007 VA examination report.  Such evidence reflects that sciatica of the left lower extremity was shown during a private medical visit on August 31, 2006, thus, the Board finds an effective date of August 31, 2006 is warranted for the award of a 10 percent rating for radiculopathy, left lower extremity.  


ORDER

For the period prior to July 27, 2009, entitlement to a disability rating in excess of 20 percent for bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine is denied.

For the period prior from July 27, 2009, entitlement to a disability rating in excess of 40 percent for bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine is denied.

An effective date of August 31, 2006, for the award of a separate 10 percent rating for radiculopathy, left lower extremity associated with bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine is allowed, subject to the regulations governing the award of monetary benefits.


REMAND

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. §§ 3.340, 4.16(a).  If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

Under 38 C.F.R. § 4.16(b), all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 

Before a finding may be made that entitlement to submission of the Veteran's claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service for extraschedular consideration is warranted, there must be a showing of marked interference with employment, or an inability to secure or follow a substantially gainful occupation by reason of service-connected disability.  

The evidence of record reflects that the Veteran has not worked since in or about November 2006.  He was employed as a finish carpenter and truck driver.  

From September 21, 2004, his sole service-connected disability is bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine, rated 20 percent disabling thus his combined evaluation is 20 percent.  From August 31, 2006, a 20 percent rating is still in effect for bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine, and a 10 percent rating is in effect for radiculopathy, left lower extremity (per this decision).  Thus, from this date his combined evaluation is 30 percent.  From June 23, 2009, a 10 percent rating is in effect for radiculopathy, right lower extremity.  Thus, from this date his combined evaluation is 40 percent.  From July 27, 2009, a 40 percent rating is in effect for bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine, and separate 10 percent ratings are in effect for radiculopathy, left lower extremity and right lower extremity.  Thus, from this date his combined evaluation is 50 percent.  

Based on the disability ratings assigned to his lumbar spine disability and associated radiculopathy, bilateral lower extremities, at no point do his combined evaluations meet the percentage standards per § 4.16(a).  

Correspondence dated in April 2007 from Jamie E. Gottlieb, M.D., states that the Veteran underwent major spinal reconstructive surgery six months prior, and Dr. Gottlieb opined that he was not going to be able to have gainful employment. 

The October 2007 VA examination report reflects that the Veteran has not worked since November 2006 and was on disability pension.  In August 2006, after driving, he had severe flare-up of pain with radiation to the left lower extremity.  Thereafter, he underwent spinal surgery.  Upon conducting a physical examination, the examiner stated that because of multiple illnesses, including coronary artery disease, status post acute myocardial infarction, and severe lower back condition, the Veteran is unemployable.  Records from his private physician state that the Veteran is not able to work and that he is fully disabled.  

In July 2009, the Veteran underwent a VA examination.  The examiner stated that the Veteran is currently unemployable because of his continued chronic low back pain despite having had surgical intervention to his lumbar area in 2006 for a sudden incapacitating episode.  He worked as a finish carpenter and truck driver for years after leaving the service.  He had a sudden incapacitating episode of lumbar pain with radiculopathy in 2006 necessitating surgical intervention.  The Veteran's left lower extremity radiculopathy was corrected by the surgery but he developed a right lower extremity radiculopathy and he feels that his chronic low back pain has not improved status post surgery.  The examiner stated that it appears that the Veteran unfortunately sustained a sudden incapacitating episode involving his lumbar spine and necessitated surgical intervention which has left him unable to work because of his continued chronic low back pain.  The examiner stated that it is less likely than not that his sudden incapacitating episode in 2006 was directly related to or aggravated by his current service-connected disability.  The examiner stated that the Veteran had intermittent back flare-ups since service but he was able to work as a finish carpenter and then a truck driver for those many years until August 2006 - when he developed new symptoms of increased low back pain and left lower radiculopathy.  The Veteran also had injured his back prior to the service as a teenager and he has congenital abnormalities as documented on the report from Antarctica in 1970.  The examiner also opined that his right lower extremity radiculopathy was not due to his service-connected lumbar spine disability.

It should be noted that the Court has held that when a claimant has both service-connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).  In this case, the July 2009 examiner has commented that the August 2006 incapacitating episode was not due to his service-connected lumbar spine disability and also noted that he has congenital abnormalities of the back.  However, the Board notes that the examination reports of record do not distinguish the symptomatology associated with his service-connected lumbar spine disability opposed to any nonservice-connected back disability.  Thus, the entirety of the symptomatology associated with his lumbar spine disability has been considered in the assignment of the disability ratings, and, as detailed, service connection has been established for radiculopathy of the bilateral lower extremities.  Thus, all of the symptomatology associated with his lumbar spine disability and associated radiculopathy, bilateral lower extremities should be considered in formulating an opinion as to unemployability.

Thus, the Board finds that the claims file should be reviewed by another VA examiner to assess whether ALL of his service-connected disabilities preclude the Veteran from following a substantially gainful occupation.

The Veteran's claim should then be submitted to the Director, Compensation and Pension Service for extraschedular consideration per § 4.16(b).  Appropriate action to develop the record in this regard is necessary.

Updated VA outpatient treatment records should be associated with the claims folder for the period October 23, 2009, to the present.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following actions:

1.  Updated VA outpatient treatment records should be obtained from October 23, 2009.

2.  The claims file should be reviewed by a VA physician for an assessment as to whether the Veteran's service-connected bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine, and radiculopathy, right and left lower extremities, precluded the Veteran from working for any period from November 2006 to the present.  The examiner should provide supporting rationale for this opinion.  If the examiner feels that it is necessary, an examination should be scheduled.  

3.  The RO/AMC should then submit the Veteran's claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for extraschedular consideration as to whether his bilateral spondylolysis, L5 with first degree spondylolisthesis L5 upon S1 and spina bifida with degenerative joint disease and spondylosis of lumbar spine (rated 20 percent disabling from September 21, 2004; 40 percent disabling from July 27, 2009); radiculopathy, left lower extremity (rated 10 percent disabling from August 31, 2006); radiculopathy, right lower extremity (rated 10 percent disabling from June 23, 2009) precluded employment for any period from November 2006.  

4.  After completion of the above, the RO should adjudicate the issue of entitlement to a TDIU per § 4.16(b).  If the benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review.  

No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655 (2011).   The Veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs