Citation Nr: 1242467	
Decision Date: 12/12/12    Archive Date: 12/20/12

DOCKET NO.  08-08 918	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to an increased evaluation for spinal stenosis due to lumbar disc disease with traumatic arthritis, currently rated as 50 percent disabling. 

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

A. Hinton, Counsel



INTRODUCTION

The Veteran served on active duty from October 1966 to October 1970. 

This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2007 rating decision of the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA).  In that decision the RO adjudicated an October 23, 2006 claim for an increased rating for spinal stenosis due to lumbar disk disease with traumatic arthritis, and increased the assigned rating from 40 to 50 percent effective from the date of claim.

In January 2011 the Board remanded the case to the RO for further development.  As noted in the introduction of the Board's decision at that time, the Veteran had raised the issue of entitlement to TDIU, which was denied in rating decisions of June 2008 and March 2009.  Although the Veteran did not perfect an appeal of that denial, in the January 2011 Remand the Board noted it had jurisdiction over the Veteran's TDIU claim under Rice v. Shinseki, 22 Vet. App. 447 (2009).  Thereafter the issue was addressed by the RO in a February 2012 supplemental statement of the case.  Thus, the claim for TDIU is a separate issue here.  

The issue of entitlement to 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.


FINDINGS OF FACT

1.  The preponderance of the evidence is against a finding that the Veteran's spinal stenosis due to lumbar disc disease with traumatic arthritis is manifested by unfavorable ankylosis of the entire spine; or by incapacitating episodes of intervertebral disc syndrome requiring bed rest having a total duration of at least six weeks during any prior 12 month period.

2.  The Veteran's spinal stenosis due to lumbar disc disease with traumatic arthritis has been productive of neurologic impairment of the right lower extremity that results in disability analogous to no more than mild incomplete paralysis of the sciatic nerve; however the preponderance of the evidence shows that the disability is not productive of moderate incomplete paralysis, or worse symptoms, of the right lower extremity sciatic nerve.

3.  The Veteran's spinal stenosis due to lumbar disc disease with traumatic arthritis has been productive of neurologic impairment of the left lower extremity that results in disability analogous to no more than mild incomplete paralysis of the sciatic nerve; however the preponderance of the evidence shows that the disability is not productive of moderate incomplete paralysis, or worse symptoms, of the left lower extremity sciatic nerve.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 50 percent for spinal stenosis due to lumbar disc disease with traumatic arthritis have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, 4.124a, Diagnostic Codes 5235-5243 (2012). 

2.  The criteria for a separate 10 percent disability rating for right lower extremity radiculopathy associated with low back disability, have been met effective October 23, 2006.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8520 (2012).

3.  The criteria for a separate 10 percent disability rating for left lower extremity radiculopathy associated with low back disability, have been met effective October 23, 2006.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a, DC 8520 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.  Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide.  38 C.F.R. § 3.159(b).  

VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA.  See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004).  VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

Though notification to the Veteran may not have met all of the requirements of the VCAA and related case law, the matter decided below may be addressed at this time, without further remand, because no errors in notice are prejudicial, and the Veteran has been provided all information needed for a reasonable person to prove the claim.  In any event, the United States Court of Appeals for the Federal Circuit (Federal Circuit) vacated the previous decision of the United States Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concluding that generic notice in response to a claim for an increased rating is all that is required.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). 

The VCAA duty to notify was satisfied by way of letters sent to the appellant in January and November 2008, and in January 2011, which in combination fully addressed the notice elements.  The letters informed the Veteran of the specific criteria to substantiate her claim for an increase in the rating for her service-connected low back disability including TDIU.  These letters further informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence.  The RO has also provided adequate notice of how effective dates are assigned and the claim was readjudicated most recently in a February 2012 supplemental statement of the case.  

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  The Board finds that all necessary development has been accomplished and the Board will proceed with appellate review.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained VA and private treatment records.  The Veteran also was afforded VA examinations regarding her claim.  Findings from the examination reports are adequate for the purposes of deciding the claim on appeal.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Applicable Law for Lumbar Spine Evaluation 

Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002).  Evaluations of a service-connected disability require review of the entire medical history regarding the disability.  38 C.F.R. §§ 4.1, 4.2.  If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment.  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.  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).  

On evaluating the condition of a service-connected disability, if it is not possible to separate the effects of a service-connected condition from that of a nonservice-connected condition, then 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor; that is, any such ambiguity as to the origin of such signs and symptoms shall be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Thus, if any symptoms cannot be distinguished as between service-connected and nonservice-connected symptomatology, the Board will consider both as service-connected disability.  Id.

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.  Application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis and when raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  

Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  The Board observes that the Court has noted that when rating spine disabilities under the revised criteria, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue.  See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010).  

If a Veteran appeals a rating decision seeking an increased rating for a disability for which service connection has already been established, such as here, then the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  More recently the Court has held that even in a claim for an increase in the level of an already service-connected disability, 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).  Thus in deciding the claim below, the Board has considered whether different ratings may be warranted for different time periods based on the evidence of record. 

VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of the disability.  Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10 (2012).  

The Veteran's statements describing the symptoms of her service-connected disability are deemed competent evidence.  38 C.F.R. § 3.159(a)(2) (2012).  However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. 

The Veteran's service-connected spinal stenosis due to lumbar disc disease with traumatic arthritis, is currently rated as 50 percent disabling, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010-5243, the hyphenated codes for evaluating arthritis due to trauma, and intervertebral disc syndrome, respectively.  Under VA's Rating Schedule, the applicable criteria for evaluating disability of the spine provide a single set of criteria for rating conditions of the spine, the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula), no matter which spine-related diagnostic code applies.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.  The designated code for vertebral fracture disability is Diagnostic Code 5235.

Under 38 C.F.R. § 4.71a.  38 C.F.R. § 4.71a, DC 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis.  38 C.F.R. § 4.71a, DC 5003 provides that degenerative arthritis that is 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.  When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved.  

Under VA's Rating Schedule, disabilities of the spine, are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (based on impairment of motion 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 § 4.25.  38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2012).  

Under the General Rating Formula, unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating.  A maximum rating of 100 percent is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243.

The notes listed below apply to the General Rating Formula for Diseases and Injuries of the Spine: Note (1) 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):  For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  (See also 38 C.F.R. § 4.71a, Plate V).

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 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 (0 degrees) always represents favorable ankylosis.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a maximum disability rating of 60 percent is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.    

For purposes of evaluation under DC 5243 (Intervertebral Disc Syndrome), 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, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2012).

If intervertebral disc syndrome is presented in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes, or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  38 C.F.R. § 4,71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2).

The Veteran seeks a disability rating in excess of 50 percent for spinal stenosis due to lumbar disc disease with traumatic arthritis, for the entire appeal period (i.e., since the date of claim receipt on October 23, 2006).  There are no separate disability ratings in effect for any associated neurologic impairment.  Consideration of associated objective neurologic abnormalities is inherent in the evaluation of the claim on appeal.  See Note (1) following 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  Therefore, as part of the current appeal the Board has considered any separately evaluated objective neurologic abnormalities associated with the spinal stenosis due to lumbar disc disease with traumatic arthritis.  The Board has reviewed the pertinent competent evidence of record including VA and private treatment records, and the reports of VA examinations during the appeal period.  

III. Analysis 

The Board has reviewed the pertinent competent evidence of record throughout the appeal period following the October 23, 2006 claim submission.  The treatment records contain subjective complaints and objective consistent with the evidence reflected in the reports of pertinent VA examinations conducted in December 2006, November 2009, and January 2011.  

During a December 2006 VA spine examination, the Veteran reported throbbing lumbar spine pain that was made worse with activities.  She reported that she could not do prolonged standing, sitting, or walking due to the pain, and that she slept in a recliner and wakes up due to back pain.  She also reported some urinary incontinence, but denied fecal incontinence.  She reported that she had to go to bed for about one week out of a month due to lumbar pain, most recently in the previous month, but noted that a doctor had not prescribed the bed rest.  The recent one week period of bed rest resulted from a flare-up of worsened pain and stiffness.  The Veteran also reported that due to her back she often fell, most recently that day.  She reported that her most recent job was as a director of data processing, but she left due to her back pain and she was now unable to do that job.  She reported that she could walk about 30 feet, but was limited because her legs and back hurt, preventing further walking.  On range of motion study, she was able to forward flex from zero to 60 degrees, with loss of lumbar flexibility.  She was able to extend from zero to 20 degrees.  Left lateral rotation was to 16 degrees.  Right lateral rotation was to 4 degrees.  Right and left lateral rotation was to 18 degrees, respectively, with pain.  The examiner was unable to evaluate whether there was additional limitation of motion after exercise and repetition as the Veteran declined to perform additional movements.  The examiner noted that the neurologic examination was normal with normal motor and sensation.  Deep tendon reflexes were absent in the lower extremities.

At a December 2006 VA neurological examination, the Veteran complained of numbness in the lateral legs and toes, and cramps in the thighs and calves.  She reported urinary incontinence; but denied trouble with the bowels, except for one episode of fecal incontinence associated with diarrhea.  Objectively, motor strength was 5/5 except for possible weakness in the left quads and hamstrings.  Muscle tone and bulk were normal.  Sensory was decreased in both legs, except at L5 in the left leg; and except at L4 in the right leg.  Vibration sense was mildly impaired at the ankles.  The examiner stated that the reported sensory loss in the lower extremities was inconsistent with root disease, and the left leg weakness did not correlate with the most recent lumbar abnormalities shown on MRI (magnetic resonance imaging).  Rather, this weakness could be related to the presumed demyelating lesions evidence on MRI of her brain.  The examiner further opined that he was unconvinced there were any neurologic deficits (other than pain) related to the lumbar spine.  He also noted that during a flare-up the Veteran could have further limitations with respect to neurologic deficits, but he could detect no objective evidence of any true weakness, incoordination, fatigue or lack of endurance.

At a November 2009 VA neurological examination, the Veteran reported pertinent complaints of numbness from the tailbone to the toes.  She reported weakness from the hips down.  She reported having fecal incontinence three to four times a month, and frequent loss of control of the bladder.  Objectively, motor strength was 5/5 with much variability in effort, and frequent complaints of pain about the knees and left hip.  Tone, bulk, dexterity, and coordination were all normal though.  Sensory was intact to fine touch.  Temperature and pin prick sensation were decreased in an incongruent and patchy fashion in the upper and lower extremities with alternating sides and not in conformity with peripheral nerve or root distribution, and generally more deficit on the left side.  Vibration sense was mildly impaired at the ankles.  Reflexes were 1-2+ at the knees, and was absent at the ankles.  An MRI in December 2008 showed no disc herniation.  The examiner's assessment was that the Veteran had no motor deficits related to the lumbar spine and that her sensory deficits were inconsistent with a root lesion.  The examiner could not relate any sensory deficit to the Veteran's service-connected lumbar spine disability.  In a January 2010 addendum, the examiner opined that the Veteran had no findings of lumbar radiculopathy, and he could not make a diagnosis of lumbar radiculopathy.  The examiner scheduled a further EMG, but the Veteran did not report for the test.

During a January 2011 VA examination for orthopedic and neurologic impairment related to the low back disability, the Veteran complained of pain from the low back down the back of her legs to her ankles.  She described the pain as constant, variable, and severe.  She denied any incapacitating episodes that required bed rest prescribed by a physician in the last 12 months.  She reported that movement was a precipitating factor for increased pain; immobility was an alleviating factor.  She reported that she had no relief with medication.  She also reported stiffness, fatigue, muscle spasms, weakness and decreased motion.  She noted numbness in her legs, weakness in the legs bilaterally.  She also complained of bladder dysfunction, predominantly urinary incontinence, and constipation.  She further reported having a history of falling down.  She used a cane or wheel chair when available, and also a back brace.  She complained of difficulty walking due to her low back disability, and reported that she occasionally needed a person to help her bathe, toilet, and dress.  She stated that she could not drive well, and had stopped working designing computers 20 years before because of her back pain.  

On range of motion study, the Veteran was able to forward flex from zero to 45 degrees and extend from zero to 15 degrees, with complaints of pain at the end range of flexion and extension.  She declined to perform left or right lateral flexion stating she was unable to perform the task.  She was able to complete right and left lateral rotations to 30 degrees, bilaterally with mild discomfort.  There was no additional limitation of motion with repetition.  No ankylosis was noted.  

On neurologic examination, the examiner noted that at times there was objective evidence of weakness, but this was not consistently the same muscle group.  Sensory examination was difficult to perform.  The Veteran's lower extremity complaints were not consistent with a neurological deficit from a disc problem in the lower back.  There was no clear muscle atrophy and muscle tone was normal.  Motor strength was difficult to assess and the Veteran was inconsistent over several attempts and the variability of the findings were not consistent or typical of a known origin of neurologic damage.  Reflexes were absent, but the Veteran also showed non-organic physical signs that suggested she was not accurately portraying her condition.  The examiner concluded that the diagnosis was degenerative changes of the lumbar spine without any findings of lumbar radiculopathy.  He also noted that the complaints which were neuropathic in nature are not consistent with a focal lesion.

The findings from the above-noted VA examinations are discussed below in analyzing the rating claim on appeal.

1.  Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes

The records on file do not show any extent of incapacitating episodes so as to warrant an evaluation on that basis in excess of the existing 50 percent.  In fact, the evidence on file does not show that for any part of the appeal there are any incapacitating episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4,71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2012).  

As noted above, at the December 2006 VA spine examination, although the Veteran reported she needed bed rest at least once a week per month because of her back, she herself stated that a doctor had not prescribed the bed rest.  At the most recent VA examination in January 2011, the Veteran reported she had had no incapacitating episodes requiring bed rest prescribed by a physician in the last 12 months.  None of the evidence on file otherwise shows any significant incapacitating episodes requiring bed rest as prescribed by a physician, and certainly no evidence of such episodes having a total duration of six weeks in the past 12 months so as to warrant a rating in excess of 50 percent.  Id.  Thus, an evaluation in excess of the existing 50 percent is not warranted at any time during the appeal period on the basis of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

2.  Musculoskeletal Low Back Disability Evaluation Based on Range of Motion

The Board has reviewed the pertinent competent evidence of record throughout the appeal period, i.e., from October 23, 2006.  Clinical evidence since then includes diagnoses: in December 2006 of (1) lumbar disk disease with traumatic arthritis, and (2) stenosis due to lumbar disk disease; and in January 2011 of (1) degenerative changes of the lumbosacral spine and (2) no findings of lumbar radiculopathy.

As indicated above, a disability rating in excess of 50 percent on the basis of range of motion requires that the low back disability is productive of unfavorable ankylosis of the entire spine, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by the disease, whether or not it radiates.  38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243.  In this case, there is no evidence on file that the Veteran's low back disability is productive of such symptomatology.  None of the VA examination reports or other clinical records contain findings productive of unfavorable ankylosis of the entire spine, even with consideration of such factors under Deluca.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  

On range of motion study at the December 2006 VA examination, the Veteran was able to forward flex from zero to 60 degrees and extend from zero to 20 degrees.  Left lateral rotation was to 16 degrees.  Right lateral rotation was to 4 degrees.  Right and left lateral rotation was to 18 degrees.  Most recently, on range of motion study at the January 2011 VA examination, the Veteran was able to forward flex from zero to 45 degrees, with complaint of pain at the extreme flexion.  She was also able to extend from zero to 15 degrees with complaint of pain at the extreme.  She declined to perform left or right lateral flexion stating she was unable to perform the task.  She was able to perform right and left lateral rotation to 30 degrees, bilaterally.  Such evidence does not provide for a disability rating in excess of 50 percent for the low back disability on the basis of limitation of motion at any time during the appeal period.  Ankylosis was not noted on either examination.  Thus, on review of the evidence during the period beginning from October 23, 2006, the preponderance of the evidence is against a finding that the symptoms are productive of unfavorable ankylosis of the entire spine so as to warrant assigning the disability a disability rating in excess of the 50 percent disability rating now in effect, even after consideration of pain, weakness and other symptoms described in DeLuca.  See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  On that basis a higher rating is not warranted based on range of motion criteria.  Id.

3.  Associated Neurologic Abnormality

As provided in Note (1), the Board is directed to evaluate any associated objective neurological abnormalities under an appropriate diagnostic code.  38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012).  A key inquiry is whether there is any objective neurologic abnormality of a lower extremity, such as radiculopathy, associated with the service-connected lumbar spine segment disabilities.  

In this case, there is conflicting evidence as to the presence of any lower extremity radiculopathy associated with the thoracolumbar spine disability.  As noted, at the December 2006 VA neurological examination the examiner determined that the subjectively reported sensory loss in the lower extremities was inconsistent with root disease; the weakness in the Veteran's left leg did not correlate with the most recent lumbar abnormalities shown on MRI; and further that the weakness could be related to the presumed demyelating lesions evidence on MRI of the brain.  The examiner was unconvinced that there were any neurologic deficits (other than pain) related to the lumbar spine.  However, that examiner noted that an MRI of the lumbar spine in the previous year had shown spondylosis and bulges at multiple levels, and there was moderate foraminal narrowing at the L4-5 level.  In an addendum the examiner noted that an MRI of the lumbar spine also showed some spondylosis at L5-S1.

At the November 2009 VA neurological examination, the same examiner determined that the Veteran had no motor deficits related to the lumbar spine; her sensory deficits were not consistent with a root lesion; and that any sensory deficit could not be related to her service connected lumbar spine disability.  In an addendum, he opined that the Veteran had no findings of lumbar radiculopathy, and a diagnosis of lumbar radiculopathy could not be made.  The report of the January 2011 VA examination concluded with a diagnosis that the Veteran had no findings of lumbar radiculopathy.

The Board notes however, that as far back as a December 1988 VA examination, there was an objective finding of decreased sensation over the L4 dermatome distribution of the left foot.  Associated with that and other findings at that time, the report concluded with an impression of low back pain, and possible lumbar disc syndrome.  

Based on a review of the evidence of record overall, including the Veteran's consistent report of bilateral lower extremity abnormal sensation, and the conflicting evidence for and against lower extremity radiculopathy associated with the thoracolumbar spine disability, the Board finds that the evidence is at least in equipoise as to whether the Veteran's left and right lower extremities manifest with neurologic abnormalities associated with her service-connected lumbar spine disability.  On that basis, and resolving doubt in her favor, separate ratings for neurologic involvement of each lower extremity are warranted for the entire appeal period.  

As provided in General Rating Formula for Diseases and Injuries of the Spine: Note (1), the Board is directed to evaluate any associated objective neurological abnormalities under an appropriate diagnostic code.  38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243.  Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis.  38 C.F.R. § 4.123 (2012).  The maximum rating that may be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis.  Id.  

Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis.  38 C.F.R. § 4.124.

In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  38 C.F.R. § 4.124a.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  Id.  The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id.  The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  38 C.F.R. §§ 4.2, 4.6.

Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve.  38 U.S.C.A. § 4.124a, DC 8520 (2012).  Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost.  Id.  Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which are mild, moderate, and moderately severe in degree, respectively.  Id.  A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy.  Id.  Further, DC 8620 refers to neuritis of the sciatic nerve and DC 8720 refers to neuralgia of the sciatic nerve.  Id.

Diagnostic Code 8525 contemplates paralysis or incomplete paralysis of the tibial nerve.  Moderate or mild incomplete paralysis warrants a 10 percent rating.  Severe incomplete paralysis warrants a 20 percent rating.  For complete paralysis of this nerve, a 30 percent rating is warranted.  Complete paralysis involves paralysis of all of the muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature; where the toes cannot be flexed, adduction is weakened and plantar flexion is impaired.  38 C.F.R. § 4.124a, DC 8525.

Resolving doubt in favor of the Veteran, the radiculopathy of the left lower extremity and of the right lower extremity, associated with the lumbar spine disability, are each productive of no more than mild incomplete paralysis.  When specifically addressed in VA treatment records, the Veteran has described complaints of only numbness in the lateral legs and toes.  There is no clinical evidence that either side involves symptoms more than sensory in nature.  Therefore, a 10 percent disability rating is warranted for the radiculopathy of the left lower extremity associated with the lumbar spine disability, and a 10 percent disability rating is warranted for the radiculopathy of the right lower extremity associated with the lumbar spine disability, for the entire appeal period.   

The preponderance of the evidence is against a finding that radiculopathy in either lower extremity is productive of moderate or severe impairment, so as to warrant a 20 percent disability rating under Diagnostic Codes 8520 or 8525, respectively.  See 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8525.  There is no evidence that the impairment on either side approximates moderate or a greater degree of impairment in the lower extremities.  

The Veteran is competent to provide evidence regarding the radicular-like symptoms in the left and right lower extremities, and as to the level of severity of pain or numbness she perceives in the lower extremities.  38 C.F.R. § 3.159(a)(2).  Nonetheless, the objective clinical findings described in the numerous VA examination reports discussed above appear to be inconsistent with the nature and, most significantly, the severity of her complaints of radicular symptoms originating from the lumbosacral spine area into the lower extremities.  Further, the medical findings are shown to consist of only sensory involvement.  There is no evidence of any atrophy, or other such organic changes of the lower extremities.  The involvement is primarily sensory.  On that basis, the Board finds that the evidence is productive of disability analogous to no more than mild incomplete paralysis.  On that basis, a grant of 10 percent, and no more, is warranted for the radiculopathy of the left lower extremity associated with the lumbar spine disability, and for the radiculopathy of the left lower extremity associated with the lumbar spine disability.  The preponderance of the evidence is against granting a disability rating greater than 10 percent for the left or right lower extremity, for neurologic manifestations associated with the lumbar strain.  See 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8525.  

The question of the presence of any other objective neurologic abnormalities associated with the low back disability other than of the lower extremities, such as bowel or bladder dysfunction, is addressed in the REMAND section. 

4.  Conclusions

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court 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 low back disability claim decided here.  The Veteran's back disability manifests with pain, limitation of motion, and some functional impairment.  She has not described any unusual or exceptional features associated with her disability.  The rating criteria are therefore adequate to evaluate the disability, and referral for consideration of extraschedular rating is not warranted.  

In summary, a 10 percent disability rating is warranted for the radiculopathy of the left lower extremity associated with the lumbar spine disability, and a 10 percent disability rating is warranted for the radiculopathy of the right lower extremity associated with the lumbar spine disability throughout the period of appeal since October 23, 2006, the date of claim.  The preponderance of the evidence is against any additional staged rating for these radiculopathies of the lower extremities, and against the grant of a disability rating for spinal stenosis due to lumbar disc disease with traumatic arthritis in excess of the existing 50 percent already in effect from October 23, 2006. 
 
The inherent claim for TDIU pursuant to Rice, supra, is addressed in the REMAND below.



ORDER

A disability rating in excess of 50 percent for spinal stenosis due to lumbar disc disease with traumatic arthritis is denied.

Subject to the law and regulations governing payment of monetary benefits, a separate 10 percent rating for radiculopathy of the right lower extremity associated with spinal stenosis due to lumbar disc disease with traumatic arthritis is granted from October 23, 2006.  

Subject to the law and regulations governing payment of monetary benefits, a separate 10 percent rating for radiculopathy of the left lower extremity associated with spinal stenosis due to lumbar disc disease with traumatic arthritis is granted from October 23, 2006.  


REMAND

With respect to the service-connected back disability, it is noted that in a January 2011 Remand, the Board ordered that an examination be conducted which included an opinion on whether any bowel or bladder problems were related to the lumbar spine disability.  The subsequent January 2011 VA examination in response to that Remand did not specifically address that question, and the evidence on file otherwise is inconclusive and unclear as to whether the Veteran has any additional neuropathic conditions to specifically include any bladder or bowel problems associated with her lumbar spine disability.  Therefore, the Board is without discretion and must remand the claim to ensure compliance with the remand instructions and to provide adequate examination.  See Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders).

The Veteran also claims entitlement to a TDIU.  Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340 (2012).  The Veteran's service-connected disability ratings meet criteria under 38 C.F.R. § 4.16(a) for TDIU.  See 38 C.F.R. § 4.16(a) (2012).  The grants in the decision above may have an impact on the Veteran's claim for TDIU.  A remand is necessary to obtain any outstanding treatment records pertinent to the TDIU claim, and to afford the Veteran a VA examination to obtain an opinion to assist in determining the effect her service-connected disabilities on her employability.  After all appropriate development has been completed the Veteran's TDIU claim must be adjudicated.  

At the most recent VA examination in January 2011 the examiner opined that the Veteran was unable to secure or follow substantially gainful occupation due to a psychiatric condition.  Notably, during an October 1989 VA psychiatric examination, the Veteran reported that she had been seen by VA Trauma Recovery Program staff in connection with psychiatric treatment.  At that time, psychometric testing suggested that the Veteran had experienced severe levels of both acute and chronic tension/anxiety, and a severe level of depression.  A subsequent VA Consultation report dated in December 1989 shows that the Veteran reported a history of rape assault in service.  After an examination that report concludes with impressions including an Axis I impression of post traumatic stress disorder (PTSD).  In light of the past evidence of psychiatric symptomatology linked with a report of rape in service, the Board finds that the recent January 2011 VA examination report raises a claim for a psychiatric disability to include PTSD.  Given the January 2011 VA examiner's opinion as to the cause of the Veteran's inability to work, the psychiatric disorder/ PTSD service connection claim raised by the record is also inextricably intertwined with the claim on appeal for TDIU.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  Thus, the claim for TDIU must be considered in connection with the adjudication of the claim for service connection for a psychiatric disability to include PTSD.  Id.

Further, it is noted that the claim for service connection for a psychiatric disorder was denied by the RO in January 1993, and became final as the Veteran did not appeal.  Thus, the RO must also notify the Veteran of necessary requirements to reopen such claim.

Finally, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically in the claims files.  Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Since the claims file is being returned to the RO, the file should be updated to include VA treatment records compiled since the latest VA clinical records dated in May 2011.  See 38 C.F.R. § 3.159(c)(2) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).  Any private treatment records not on file and relevant to the TDIU claim should be obtained prior to any examination.

Accordingly, the case is REMANDED for the following action:

1.  Request that the Veteran identify any outstanding VA or private treatment records pertaining to her service-connected disabilities as relevant to the TDIU claim, and as to her psychiatric condition and any neuropathic condition referable to the lumbar spine disability.  Take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate these with the claims file.

2.  Notify the Veteran that she may submit statements from herself and others describing the impact on her service-connected disabilities on her ability to work; and describing their impressions regarding the onset and chronicity of any psychiatric disorder, or any bowel or bladder impairment referable to the lumbar spine disability.  She should be provided an appropriate amount of time to submit this lay evidence.

3.  After providing appropriate notice as to the requirements to reopen her claim for service connection for a psychiatric disability to include PTSD, adjudicate that claim.  

4.  After completion of the above development, schedule the Veteran for a VA examination by a neurological specialist to determine the nature extent, onset and likely etiology of any chronic bladder or bowel impairment associated with the lumbar spine.  The claims folder and a copy of this Remand must be provided to and reviewed by the examiner in conjunction with the examination.  The examination should include all tests and procedures necessary, including appropriate neurological diagnostic tests to rule in or rule out any bladder or bowel impairment related to the service-connected lumbar spine disability.  

In offering an opinion as to whether the Veteran's reported bladder and bowel impairment is related to her lumbar spine disability, the examiner must acknowledge and discuss her report regarding the onset of such impairment and its relationship to her lumbar spine disability.  All findings and conclusions, and the rationale for all opinions expressed by an examiner must be provided.  If the examiner determines that a medically-sound opinion cannot be reached, it is requested that an explanation as to why that is so be included, to include a recitation of the missing facts necessary to render a non-speculative opinion.

5.  After completion of the above development, schedule the Veteran for an appropriate examination to determine entitlement to TDIU.  All indicated tests should be conducted.  The claims file must be made available and reviewed by the examiner.  In offering opinions, the examiner must acknowledge and discuss the Veteran's report of associated symptoms of service-connected disabilities and their impact on her ability to work.

The examiner should conduct any appropriate tests and studies required.  Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that her service-connected disabilities, either alone or in the aggregate, render her unable to secure or follow a substantially gainful occupation.

For this purpose, notify the examiner that the Veteran's service-connected disabilities currently consist of (a) spinal stenosis due to lumbar disc disease with traumatic arthritis; (b) right lower extremity radiculopathy associated with a low back disability; (c) left lower extremity radiculopathy associated with a low back disability; and (d) vascular headaches.  For this purpose, the examiner should also consider as service connected: (a) any other neuropathic disability which the examiner in item number 4 above finds to be at least as likely as not related to service, or to be associated with the lumbar spine disability; or (b) any psychiatric disability for which the RO grants service connection in connection with the orders of this Remand.  

All findings and conclusions, and the rationale for all opinions expressed by an examiner should be provided in a legible report.  If the examiner determines that a medically-sound opinion cannot be reached, it is requested that an explanation as to why that is so be included, to include a recitation of the missing facts necessary to render a non-speculative opinion.

6.  Then readjudicate the appeal.  If a benefit sought remains denied, the Veteran and her representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
D. JOHNSON
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs