Citation Nr: 1304052	
Decision Date: 02/05/13    Archive Date: 02/08/13

DOCKET NO.  97-03 234	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  What evaluation is warranted for lumbosacral strain from June 18, 2005?

2.  Entitlement to a separate compensable rating for neurological complications associated with lumbosacral strain.  

3.  Entitlement to total disability based upon individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T.S. Willie, Counsel


INTRODUCTION

The Veteran served on active duty from December 1971 to January 1976.

This matters comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Bay Pines, Florida.  Jurisdiction now rests with the Atlanta, Georgia RO.

This case was last remanded by the Board for further development in May 2012. 

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.  Since June 18, 2005, lumbosacral strain has not been productive of unfavorable ankylosis of the entire thoracolumbar spine.  

2.  Neurological impairment of the right lower extremity due to residuals of lumbosacral strain has been manifested by mild incomplete paralysis of the sciatic nerve.  






CONCLUSIONS OF LAW

1.  Since June 18, 2005, the criteria for a rating higher than 40 percent disabling have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012).

2.  The criteria for a 10 percent rating for peripheral neuropathy-sciatica right leg/right leg radiculopathy have been met.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.71a, Diagnostic Code 5237, 4.124a, Diagnostic Code 8520. 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance 

As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met.  The case was most recently readjudicated in November 2012.

The claims file contains service treatment records, Social Security Administration records and VA records.  VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  He was provided the opportunity to present pertinent evidence and testimony.  In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c). 

ANALYSIS

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4.   Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1 , 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

In a September 2005 rating decision, the RO awarded service connection for lumbosacral strain.  The Veteran was assigned a 20 percent evaluation.  Given that the Veteran appeals the initial evaluation assigned, the severity of his disability is considered during the entire period from the initial assignment of the disability rating to the present.  Fenderson.  The issues of entitlement to an initial rating in excess of 20 percent for a lumbosacral strain prior to September 26, 2003 and a rating in excess of 40 percent for a lumbosacral strain from September 26, 2003 to June 18, 2005, however, were addressed in a prior Board decision.  The issue in the present decision is what evaluation is warranted for lumbosacral strain from June 18, 2005.  

Pursuant to the Diagnostic Code 5237, a40 percent rating is assigned for forward flexion of the thoracolumbar spine30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine.  Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Based on the evidence presented, the Board finds that a rating higher than 40 percent disabling is not warranted.  In this regard, when examined in June 2005, the Veteran reported constant low back pain occurring three to four times per day.  Examination revealed forward flexion to 60 degrees and extension to 10 degrees.  On repetitive motion, flexion decreased down to a maximum of 30 degrees and extension to a maximum of 0 degrees.  X rays revealed a grossly normal lumbosacral spine.  In the June 2012 VA examination, the Veteran reported continued back pain with lower lumbar muscle spasms with right leg pain.  Examination revealed flexion to 65 degrees with pain and 15 degrees with pain.  There was no additional limitation in range of motion with repetitive testing; however, there was less movement than normal, weekend movement, excess fatigability, pain on movement and interference with sitting, standing and/or weight bearing.  The VA examiner stated that the Veteran did not have a normal range of motion for his age.  These findings do not meet the criteria for the next higher evaluation as there is no showing of unfavorable ankylosis of the entire thoracolumbar spine. 

The Board accepts that the Veteran has functional impairment.  See DeLuca.  The Board also finds the Veteran's own reports of symptomatology to be credible.  However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion required to warrant a higher evaluation.  The Board notes that the Veteran is competent to report that his disability is worse.  However, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence demonstrates that a 40 percent rating and no more is for application. 

The Board has also considered whether the Veteran's service- connected lumbar spine disability would warrant a higher rating if rated on the basis of incapacitating episodes.  During the June 2012 examination, it was noted that the Veteran had intervertebral disc syndrome but no incapacitating episodes.  In light of the lack of evidence demonstrating any episodes requiring bed rest prescribed by a physician and treatment by a physician for IVDS, and indeed, in light of the lack any assertion on the part of the Veteran that the criteria for incapacitating episodes have been met, the Board finds that a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. 

With regard to neurologic abnormalities, the General Rating Formula directs that neurological manifestations of should be rated separately from orthopedic manifestations.  When examined in June 2005, the Veteran denied lower extremity pain and had no bowel or bladder symptoms.  Lasegue's testing was negative bilaterally and motor examination revealed bilateral 5/5 motor strength.  Sensation to light touch was also intact.  

In the June 2012 VA examination, the Veteran reported continued back pain with lower lumbar muscle spasms with right leg pain.  There was positive straight leg raising for the right and negative for the left.  Sensory results were normal.  There was severe right lower extremity constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias but no numbness.  The left lower extremity had none of the above symptoms.  His right radiculopathy was rated as severe.  No other neurologic abnormalities or findings related to the thoracolumbar spine (such as bowel or bladder problems) were shown.  The VA examiner stated that the Veteran did not have a normal range of motion for his age and that he had degenerative L5-S1 disc with right leg radiculopathy.  The lower lumbar pain with muscle spasms and right leg pain was a result of this.  

Peripheral neuropathy-sciatica right leg was also diagnosed.  There was severe right lower extremity constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias but no numbness.  The left lower extremity had none of the above symptoms.  Incomplete paralysis of the sciatic nerve of a mild degree was noted.  The left lower extremity was normal.  

Under 38 C.F.R. § 4.124a, 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.  When the involvement is wholly sensory, the rating should be for the mild, at most, the moderate degree.  The ratings for peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor.  

Under DC 8520, incomplete paralysis of the sciatic nerve warrants a 10 percent evaluation when mild, a 20 percent evaluation when moderate, a 40 percent evaluation when moderately severe, and a 60 percent evaluation when severe, with marked muscular atrophy.  Complete paralysis of the sciatic nerve warrants an 80 percent evaluation where the foot dangles and drops, there is no active movement possible of muscles below the knee and flexion of the knee is weakened or (very rarely) lost.  

As noted above, the Veteran has not complained of and the evidence does not support findings of erectile dysfunction, or bowel or bladder disorders associated with his low back disability.  The Veteran, however, has complained of pain radiating to his lower right extremity.  The evidence reflects that the Veteran has peripheral neuropathy-sciatica right leg/ right leg radiculopathy of a mild degree.  The Board associates the medical findings described above as showing slightly diminished reflexes, with "mild" incomplete paralysis of the sciatic nerve, rather than "moderate."  Accordingly, a separate 10 percent rating for peripheral neuropathy-sciatica right leg/right leg radiculopathy associated with the Veteran's lumbar spine disability is warranted.  

The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular scheduler standards such that referral to the appropriate officials for consideration of extra-scheduler ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) ; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  There are no exceptional or unusual factors with regard to the Veteran's diabetes.  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.")  Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology to include his reports of pain, and provide for consideration of greater disability and symptoms than currently shown by the evidence.  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extra-schedular consideration is not warranted.

In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b).  


ORDER

An evaluation higher than 40 percent disabling for lumbosacral strain since June 2005 is denied.  

A separate 10 percent rating for peripheral neuropathy-sciatica right leg/right leg radiculopathy associated with the Veteran's lumbar spine disability is granted, subject to the controlling regulations applicable to the payment of monetary benefits.


REMAND

In the June 2012 VA examination, the VA examiner stated that the Veteran would not be a candidate for gainful employment.  He expressed, however, that the Veteran would be able to perform manual labor but no lifting.  The examiner then stated that the Veteran would only be eligible for sedentary work that would allow him frequent breaks as he cannot sit for long periods of time due to the sciatica.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is "part of," and not separate from, a claim of entitlement to an increased rating.  Id. at 453.  While this issue has yet to be certified for appeal, let alone initially addressed by the RO, in light of the binding precedent set forth in Rice, the Board is compelled to remand this issue.   

Accordingly, the case is REMANDED for the following action:

Provide the Veteran VCAA notice which informs him of the evidence necessary to establish entitlement to a total disability evaluation based on individual unemployability due to service connected disorders.  Provide the Veteran with a VA Form 21-8940, Application for Increased Compensation based on Unemployability.  Subsequently forward a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, to the former employers listed on the Veteran's submitted VA Form 21-8940.  Thereafter, adjudicate the claim for TDIU.


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).




______________________________________________

Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs