Citation Nr: 1303258 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-13 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE 1. Entitlement to an increased disability evaluation for a service-connected thoracolumbar spine disorder, currently rated as 20 percent disabling. 2. Entitlement to a separate rating for radiculopathy associated with the service-connected thoracolumbar spine disorder. REPRESENTATION Appellant (Veteran) represented by: AMVETS ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from April 1983 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. As will be fully discussed below, the applicable rating criteria for the Veteran's service-connected back disorder includes consideration of separate ratings for associated neurological symptoms, such as radiculopathy. As such, the issues have been reframed above. The Board notes that it has reviewed the evidence of record to include the Veteran's virtual VA claims file. No evidence has been added to the record since the statement of the case issued in this matter in March 2010. FINDINGS OF FACT 1. The Veteran has pain-free forward flexion of the thoracolumbar spine in excess of 30 degrees. 2. The Veteran's thoracolumbar spine disorder does not involve ankylosis and does not cause incapacitating episodes. 3. The Veteran experiences mild radiculopathy into his right lower extremity as a result of his service-connected thoracolumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent, for degenerative joint and disc disease in the Veteran's service-connected thoracolumbar spine, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Diagnostic Codes (DCs) 5235-5243 (2012). 2. The criteria for a separate 10 percent disability rating, for radiculopathy into the Veteran's right leg due to his service-connected thoracolumbar spine disability, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA must provide notice and assistance to claimants for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice 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; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that 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 the claim for VA benefits. In the instant case, the Veteran was provided with a notification letter in August 2009. The letter informed the Veteran of the evidence and information necessary to substantiate a claim for increased rating, and informed the Veteran regarding his and VA's respective responsibilities in obtaining evidence and information. In accordance with Dingess/Hartman, the letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date. Moreover, the letter was sent to the Veteran prior to the initial unfavorable AOJ decision issued in October 2009. With regard to VA's duty to assist, the record indicates that, in the August 2009 notification letter, the RO requested from the Veteran information regarding medical evidence pertaining to his claim for increased rating. The record indicates that the Veteran did not respond to the letter. The Veteran did respond to the RO's notice regarding a VA compensation examination, which was conducted in September 2009. A report of the examination is of record. In the report, the VA examiner detailed the nature and severity of the Veteran's lower back disorder, and noted findings based on the Veteran's lay statements, on the evidence of record, and on the examination of the Veteran. The findings are supported by data and reasoned explanations. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As the VA medical examination was conducted over three years ago, the Board has considered whether a remand of this issue would be appropriate for a new examination. See Green v. Derwinski, 1 Vet. App. 121 (1991) (the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran). However, the Board finds a new examination unwarranted because no evidence of record indicates a worsening of the lower back disorder since September 2009. Indeed, in his March 2010 substantive appeal, the Veteran merely indicates that the examiner did not rate his disability properly. He did not assert that his disorder had worsened since the examination. As such, a new examination is unnecessary for the claim. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (the mere passage of time does not automatically render an examination inadequate; rather, there must be evidence of a change in the condition of an allegation of worsening of the condition). The report of the September 2009 examination is sufficient to assist the Board in deciding the Veteran's claim. In sum, the Board finds that VA's duties to notify and assist have been substantially met. Any errors committed were not harmful to the essential fairness of the proceeding. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim for increased rating. The Claim for Increased Rating The Veteran has been service connected for a thoracolumbar spine disorder since February 1990. The disability has been rated as 20 percent disabling since January 1996. In July 2009, the Veteran filed a claim for increased rating. In the October 2009 rating decision on appeal, the RO denied his claim. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2012). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2012). In addition, where there is a question as to which of two disability evaluations should 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. See 38 C.F.R. § 4.7 (2012). In this matter, the Board will consider whether a higher rating has been warranted from July 16, 2008 (one year prior to the date of the Veteran's claim for increased rating) at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings); see also 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Disability of the spine is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) and under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Evaluations of 10, 20, 40, 50, 60, and 100 percent are authorized for such thoracolumbar spine disorders as limitation of motion, intervertebral disc syndrome (IVDS), and ankylosis. As the Veteran has been rated as 20 percent disabled during the appeal period, the Board will limit its analysis of the rating criteria to whether the 40, 50, 60, or 100 percent ratings would be authorized. An evaluation of 40 percent is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, for favorable ankylosis of the entire thoracolumbar spine, or for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. An evaluation of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. An evaluation of 60 percent is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. An evaluation of 100 percent is warranted for unfavorable ankylosis of the entire spine. Unfavorable ankylosis is a condition with which the entire thoracolumbar spine is fixed in flexion or extension, resulting in several symptoms described in Note 5 of the general formula for diseases and injuries of the spine. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). An incapacitating episode is defined as 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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). In this matter, the evidence indicates that the Veteran has limitation of motion and IVDS related to his lower spine disorder. But no evidence of record indicates that the Veteran has ankylosis in his thoracolumbar spine, or has experienced incapacitating episodes as the result of the disorder. As indicated, the evidence of record consists of the September 2009 VA report, and statements by the Veteran. In relevant part, the VA report states that the Veteran does not experience incapacitating episodes due to his lower spine disorder. Moreover, range of motion testing and radiology examination indicated no ankylosis. The examination report indicates that the Veteran's primary symptoms are limitation of motion due to pain, and IVDS manifested by radiculopathy into the right leg. The examiner noted the Veteran's complaints of pain and discomfort, and that he ingests Ibuprofen and Vicodin twice per month for back pain. The Veteran complained of radiating pain into his right buttock and leg. The Veteran reported flare ups "once a week once every two weeks variable that lasts between 4 hours and a day depending on his activities." The Veteran also complained of fatigability and lack of endurance related to repetitive bending or standing for extended periods, or carrying more than 20 pounds. On examination, the examiner noted tenderness in the lower spine area, normal spinal curvatures, forward flexion to 50 degrees with some low back pain, and forward flexion to 45 degrees after repeated range of motion testing three times. The examiner noted that the diminished five degrees of limitation was due to pain, fatigability, and lack of endurance associated with the repetitive motions. The examiner noted that repetitive testing caused radiculopathy into the right leg. The examiner also noted limited range of motion due to pain on extension, rotation, and lateral bending. The examiner diagnosed the Veteran with degenerative joint/disc disease of the thoracic spine from T10 to L1, and of the lumbar spine from L3 to L4. Based on x-ray evidence dated in September 2009, the examiner characterized the degenerative changes in the lumbar spine as "mild[.]" Regarding lay evidence, the Board notes the Veteran's complaints in his February 2010 notice of disagreement and March 2010 substantive appeal that the VA examination and report did not reflect the accurate point at which he experienced painful motion during range of motion testing. After a review of all the evidence in this Veteran's case, the Board finds that a preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for the degenerative joint and disc disease in the thoracolumbar spine. The evidence indicates no ankylosis, no incapacitating episodes, and forward flexion beyond 30 degrees, even accounting for the painful motion between 40 and 50 degrees flexion. Hence, a rating in excess of 20 percent is unwarranted under either the General Rating Formula or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. Nevertheless, the Board does find a separate rating warranted in this matter for the Veteran's neurological symptomatology. Note (1) under the General Rating Formula directs VA to rate separately under an appropriate DC "any associated objective neurologic abnormalities[.]" The lay and medical evidence clearly shows that the Veteran's IVDS, while not productive of incapacitating episodes, is productive of radiculopathy into the right lower extremity. Hence, a separate rating is appropriate here under 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a , disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, 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. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, which is at issue in this matter. 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. Disability ratings of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, DC 8520. The evidence in this matter indicates that the neurological symptoms in the Veteran's right lower extremity are sensory and mild in nature. The September 2009 VA examiner indicated that the Veteran had radicular symptoms into his right leg when the leg was extended 45 degrees or more, and during repetitive range of motion testing. He also noted 1+ ankle jerk, indicating some diminished reflexes possibly due to the radiculopathy. Nevertheless, the examiner noted normal strength in the legs, normal sensation in the feet and legs, and deep tendon reflexes of 2+ patellar. This evidence indicates that the Veteran experiences some compensable neurological symptoms in his right leg, but that the symptoms are sensory and mild in nature. As such, a separate 10 percent rating is warranted for the radicular pain associated with the Veteran's IVDS. 38 C.F.R. § 4.71a, General Rating Formula, Note (1), § 4.124a , DC 8520. The Board also finds that there is no basis for the assignment of any higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca, 8 Vet. App. at 204-07. The competent medical evidence reflects that the assigned 20 and 10 percent ratings properly compensate the Veteran for the extent of functional loss resulting from any such symptoms. Moreover, the September 2009 VA examiner specifically noted that, even when considering the additional loss caused by the Veteran's periods of flare-ups, reports of pain, fatigability, and lack of endurance, he could still forward flex beyond 30 degrees. Accordingly, the Board finds that throughout the appeal period, a rating in excess of 20 percent is unwarranted under the General Rating Formula for degenerative joint and disc disease, and a rating in excess of 10 percent is unwarranted under DC 8520 for mild radicular symptoms. Extraschedular Consideration The Board must still consider whether the Veteran is entitled to an extra-schedular rating under the provisions of 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the disability picture presented by the Veteran's thoracolumbar spine disorder is appropriately contemplated by the rating schedule. Specifically, the Veteran has back pain and radicular symptoms associated with range of motion. Those symptoms are directly contemplated by the schedular criteria. Therefore, referral for consideration of an extraschedular evaluation is not warranted here. Thun. ORDER Entitlement to a disability rating in excess of 20 percent for degenerative joint and disc disease of the thoracolumbar spine is denied. Entitlement to a separate 10 percent disability rating for neurological symptoms associated with the Veteran's thoracolumbar spine disability is granted, subject to regulations governing the payment of monetary awards. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs