Citation Nr: 1241237 Decision Date: 12/03/12 Archive Date: 12/12/12 DOCKET NO. 07-19 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial increased rating for residuals of a discectomy and lumbar fusion, rated as 10 percent disabling prior to June 7, 2011 and as 40 percent disabling thereafter. 2. Entitlement to an initial rating in excess of 10 percent for sciatica of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from March 1982 to April 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2006 and December 2006 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. The Veteran's case was previously before the Board in May 2011 at which time it was remanded for additional development by the originating agency. The appeal has now returned to the Board. FINDINGS OF FACT 1. For the period prior to March 29, 2010, the Veteran's residuals of a discectomy and lumbar fusion manifested orthopedic impairment with forward flexion limited to 90 degrees without muscle spasms, abnormal spinal contour, ankylosis, or incapacitating episodes requiring bed rest prescribed by a physician. 2. For the period beginning March 29, 2010, the Veteran's residuals of a discectomy and lumbar fusion manifested orthopedic impairment with forward flexion limited to 30 degrees without ankylosis or incapacitating episodes requiring bed rest prescribed by a physician. 3. The Veteran's sciatica of the right lower extremity most nearly approximates neurological impairment of the right lower extremity that is mild. 4. Throughout the claims period, the Veteran has manifested neurological impairment of the left lower extremity that most nearly approximates mild. CONCLUSIONS OF LAW 1. For the period prior to March 29, 2010, the criteria for an initial rating in excess of 10 percent for residuals of a discectomy and lumbar fusion based on orthopedic impairment have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2012). 2. For the period beginning March 29, 2010, the criteria for a 40 percent rating, but not higher, for residuals of a discectomy and lumbar fusion based on orthopedic impairment have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243. 3. The criteria for an initial rating in excess of 10 percent for sciatica of the right lower extremity have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8521. 4. Throughout the claims period, the criteria for a separate 10 percent rating, but not higher, for neurological impairment of the left lower extremity have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for a low back disability characterized as residuals of a discectomy and lumbar fusion was granted in the August 2006 rating decision on appeal. An initial 10 percent evaluation was assigned effective May 1, 2006. An increased 40 percent evaluation was granted in a May 2012 rating decision, effective June 7, 2011. A separate 10 percent evaluation for sciatica of the right lower extremity was granted in the December 2006 rating decision on appeal, also effective May 1, 2006. The Veteran contends that increased ratings are warranted for orthopedic and neurological impairment of the lumbar spine and lower extremities as he experiences constant pain, restricted motion, and numbness and pain of the legs due to his low back disability. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Turning first to the Veteran's orthopedic impairment, the lumbar spine disability is currently rated as 10 percent disabling prior to June 7, 2011 and 40 percent disabling thereafter under Diagnostic Code 5241 (for spinal fusion) and the general rating formula for diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5242 (2012). An October 2008 MRI demonstrated a limited degree of disc involvement and the criteria pertaining to intervertebral disc syndrome are therefore for application. Intervertebral disc syndrome is evaluated 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the general rating formula for rating diseases and injuries of the spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 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. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if 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. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. In applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. After review of the evidence of record, the Board finds that a 40 percent evaluation is warranted for orthopedic impairment from the low back disability for the period beginning March 29, 2010. Prior to this date, the current 10 percent rating is appropriate. During the earlier period, the Veteran's most limited motion was demonstrated at the July 2006 VA examination. At that time, forward flexion measured to 90 degrees with pain at the endpoint of range of motion testing and a combined range of motion measured to 205 degrees, again with pain at the endpoint. Flexion to 90 degrees and a combined range of motion to 205 degrees is clearly contemplated by a 10 percent disability evaluation under the general rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The Board has considered whether a rating in excess of 10 percent is warranted based on functional factors, but the limitation of motion reported by the July 2006 VA examiner took into account the Veteran's complaints of pain during testing-pain that was only noted at the endpoint. There was also no indication of additional loss of motion following repetitive testing during VA examinations performed in July 2006 or December 2006. An rating in excess of 10 percent is therefore not warranted for the period prior to March 29, 2010. For the period beginning March 29, 2010, the Board finds that an increased 40 percent rating is appropriate. The Veteran was examined by a private physician in March 2010 and demonstrated severely decreased range of lumbar motion. The doctor estimated that the Veteran had lost 40 percent of his range of motion and experienced severe back pain. Similar findings were made by a VA examiner in June 2011. At that time, flexion was limited to 30 degrees with pain at the endpoint of testing with a combined range of motion to 138 degrees. These findings most nearly approximate the criteria associated with a 40 percent evaluation as forward flexion is limited to 30 degrees or less. The Board also concludes that the private doctor's findings of severely decreased range of motion in March 2010 most nearly approximate a 40 percent rating. Thus, the 40 percent evaluation is appropriate from March 29, 2010. With respect to functional factors, a rating in excess of 40 percent is only possible when the evidence establishes unfavorable ankylosis of the thoracolumbar or entire spine. None of the examining VA or private physicians have found ankylosis of the spine and the Veteran has clearly maintained useful motion of the spine throughout the claims period. Furthermore, while VA is required to consider functional impairment when evaluating disabilities based on limitation of motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 are not for consideration where, as here, the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the Board cannot conclude that the Veteran's disability most nearly approximates ankylosis during the period beginning March 29, 2010 when he has retained useful motion of the thoracolumbar spine. The Board finds that the competent evidence of record establishes that the Veteran's thoracolumbar spine is not ankylosed and a rating in excess of 40 percent is not warranted based on limitation of motion for the period beginning March 29, 2010. Turning to whether an increased rating is warranted at any time during the claims period under the criteria pertaining to intervertebral disc syndrome, an October 2008 MRI demonstrated disc protrusion at the L5-S1 level. Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, a 20 percent evaluation is assigned in cases of intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent evaluation contemplates incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A maximum 60 percent evaluation is assigned for incapacitating episodes having a total duration of at least 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 bedrest prescribed by a physician and treatment by a physician. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. In this case, the medical and lay evidence does not establish that the Veteran has been prescribed any periods of bedrest by a physician. The Veteran denied experiencing any periods of incapacitation during the June 2011 VA examination, and treatment records from his private physician and a VA facility do not document any prescribed bedrest. Therefore, the record does not establish that the Veteran has experienced incapacitating episodes as defined by VA during the claims period. An increased rating under the formula for rating intervertebral disc syndrome is therefore not warranted. In sum, the Veteran's orthopedic impairment of the lumbar spine is appropriately rated as 10 percent disabling for the period prior to March 29, 2010 and as 40 percent disabling thereafter. The Board must now determine the appropriate ratings for any neurological impairment stemming from the service-connected low back disability. The general rating formula provides for separate ratings for neurologic manifestations of a back disability. Disability involving a neurological disorder is ordinarily rated in proportion to the impairment of motor, sensory, or mental function. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §§ 4.120, 4.124a. The Veteran is currently assigned a 10 percent evaluation for neurological impairment (sciatica) of the right lower extremity under Diagnostic Code 8521, pertaining to paralysis of the external popliteal nerve. Under this diagnostic code, incomplete paralysis of the nerve warrants a 30 percent evaluation if it is severe, a 20 percent evaluation if it is moderate, and a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8521. The Veteran has consistently reported experiencing numbness and radiating pain in his right leg. VA examinations performed in December 2006 and June 2011 demonstrated right lumbar radiculopathy with diminished reflexes and sensation. The June 2011 VA examiner specifically found that the Veteran experienced only mild impairment of the right lower extremity and characterized the disability as wholly sensory. The Board therefore finds that the Veteran's neurological impairment of the right lower extremity most nearly approximates mild and a rating in excess of 10 percent is not warranted under Diagnostic code 8521. The Board also finds that a separate 10 percent evaluation is warranted for neurological impairment of the left lower extremity. The Veteran testified in September 2010 that he had experienced numbness and tingling of the left leg since his second spinal surgery in 2005, and the symptoms of pain and loss of sensation were comparable to those in the right leg. Although none of the examining physicians have specifically noted the presence of left leg radiculopathy or sciatica, an April 2010 lumbar myelogram demonstrated mild thinning of the bilateral nerve roots. The Veteran is also competent to report observable symptomatology, such as pain and numbness in his left leg. The Board finds that his testimony regarding this aspect of the disability is credible, and a separate 10 percent evaluation for neurological impairment of the left lower extremity that most nearly approximates mild is granted throughout the claims period. The Veteran's service-connected low back disability therefore warrants a 10 percent evaluation for orthopedic impairment prior to March 29, 2010 and a 40 percent evaluation thereafter. Separate 10 percent evaluations for neurological impairment of the bilateral lower extremities are also appropriate. The Board has considered whether there is any other schedular basis for granting a higher rating other than those discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against any other increased ratings. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Other Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's residuals of a discectomy and lumbar fusion with neurological impairment of the bilateral lower extremities are manifested by symptoms such as pain, limited motion, and numbness of the legs. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular rating is not warranted. The Court has also held that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id at 454. In this case, the record is negative for evidence that the Veteran is unemployable. He is not in receipt of Social Security disability benefits, and has continued to work throughout the claims period. There is no medical evidence that the Veteran is not able to work due to his service-connected low back and neurological disabilities, and the Veteran has not stated that he is unable to perform his work duties because of the service-connected disabilities. In fact, during the June 2011 VA examination, the Veteran reported that he had recently switched to a desk job which was more accommodating for his disability. Therefore, remand or referral of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected orthopedic and neurological conditions. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran has initiated an appeal regarding the initial ratings assigned following the award of service connection for a lumbar spine disability and associated right leg sciatica. The claim for service connection for the disability on appeal is now substantiated and the filing of a notice of disagreement as to the August 2006 and December 2006 rating decisions does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2011). Rather, the Veteran's appeal as to the initial rating assignments triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. The April 2007 and March 2008 statement of the cases (SOCs), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating the disabilities at issue, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluations that the RO assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected disabilities at issue. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided proper VA examinations in December 2006 and June 2011 in response to his claims for increased initial ratings. The Board also finds that VA has complied with the May 2011 remand orders of the Board. In response to the Board's remand, the Veteran was provided a VA examination in June 2011 to determine the current severity of the orthopedic and neurological manifestations of his disability. The case was then readjudicated in the May 2012 SSOC. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to an initial rating in excess of 10 percent for the orthopedic residuals of a discectomy and lumbar fusion for the period prior to March 29, 2010 is denied. Entitlement to a rating in excess of 40 percent, but not higher, for the orthopedic residuals of a discectomy and lumbar fusion for the period beginning March 29, 2010 is granted. Entitlement to an initial rating in excess of 10 percent for sciatica of the right lower extremity is denied. Entitlement to a separate 10 percent rating, but not higher, for neurological impairment of the left lower extremity throughout the claims period is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs