Citation Nr: 1304886 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-38 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for immersion foot of the right lower extremity. 2. Entitlement to an initial rating in excess of 20 percent for immersion foot of the left lower extremity. 3. Entitlement to an initial rating in excess of 10 percent for the low back disability. 4. Entitlement to a separate rating for neurological symptoms of the low back disability. 5. Entitlement to an extraschedular evaluation for the low back disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran had active service from July 1986 to May 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from August 2009 and August 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The issues of entitlement to a separate rating for neurological symptoms of the low back disability and entitlement to an extraschedular rating for the low back disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served on active duty from July 1986 to May 1989. 2. On September 11, 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw the appeal of his claims for increased ratings for immersion foot of the bilateral lower extremities. 3. The Veteran's thoracolumbar flexion has not been limited to 60 degrees or less, the combined range of motion of the thoracolumbar spine has not been less than 120 degrees, and none of the objective evidence shows muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals seeking increased ratings for immersion foot of the bilateral lower extremities have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for an initial rating in excess of 10 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b), 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. Id. In the present case, the Veteran has withdrawn his appeal seeking increased ratings for his immersion foot of the bilateral lower extremities and, hence, there remain no allegations of errors of fact or law as to these claims for appellate consideration. Accordingly, the Board does not have jurisdiction to review them and the appeals seeking increased ratings for immersion foot of the bilateral lower extremities is dismissed. II. Increased Ratings The Veteran seeks an initial rating in excess of 10 percent for his service connected low back disability, mechanical lumbar strain, which has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, lumbosacral strain. Disability ratings are determined by applying the criteria set forth in 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 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Under Diagnostic Code 5237, lumbosacral strain is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates) stiffness, or aching in the area affected by residuals of injury or disease. The General Formula provides that a 10 percent rating is warranted for: Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or the 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 an abnormal gait or abnormal spinal contour, or, vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is warranted for: Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine is assigned a 50 percent rating. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id at Note (5). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). The General Formula provides that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion for the thoracolumbar spine is 240 degrees. Id. at Note (2). VA may consider granting a higher rating when the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). November 2008 VA treatment records show complaints of low back pain with radiation down the right leg. He reported bowel incontinence attributed to irritable bowel syndrome. Pain was aggravated with bending and lifting. During flare-ups, he would sometimes be unable to do normal daily activities. Flare-ups caused no incapacitating episodes in the prior year. Objective testing revealed tenderness to palpation on the right side of the paravertebral muscles in the mid lumbosacral spine area. Range of motion (ROM) was normal. The provider anticipated no additional loss of motion with repetitive use. The June 2009 VA examination shows complaints of daily back pain. He said prolonged standing and sitting increased the pain, numbness and tingling in his low back. He reported sciatica and said his prior job required prolonged standing, which increased the pain. He was unemployed at the time of the examination. Objective testing showed his lumbar paraspinous muscles were tender to palpation. Flexion measured to 70 degrees, with discomfort between 30 and 70 degrees. Extension measured to 20 degrees, with discomfort between 10 and 20 degrees. Lateral flexion measured to 20 degrees, bilaterally, while bilateral rotation measured to 25 degrees. The examiner found no additional functional limitations with repetitive use. The Veteran submitted a prescription showing his inability to lift weight exceeding 20 pounds or perform repetitive lifting or twisting. He said the limitations were due to his low back and caused him to lose his job in manufacturing. Notably he said he did not want to file a claim for total disability rating based on individual unemployability (TDIU). The June 2010 VA examination shows he lost his job in May 2010 due to his employer relocating. He continued to report daily pain with minimal left leg pain as well as fatigability, lack of endurance, and stiffness. His neurologic symptoms had resolved since his last examination. Pain was exacerbated with prolonged sitting, standing, and repetitive movements. He said he could walk for a long time but that it would be painful. He could stand for several hours and sit for 30 minutes. Physical therapy resulted in increased ROM and decreased leg symptoms. Flare-ups were triggered by household chores and yard work and rated a 6 to 7 on a pain scale to 10, with 10 being the worst pain. During flare-ups, he would avoid all movement and sit in a chair. He avoids chores and errands when his back is sore. Objective testing showed flexion to 80 degrees, extension to 20 degrees, bilateral lateral rotation to 30 degrees, and bilateral lateral flexion to 20 degrees. He expressed pain at the end ranges of motion. The examiner estimated that flexion would be limited to 75 degrees due to pain, fatigue, weakness, or lack of endurance following repetitive use. The examiner observed painful motion and tenderness over the lower spine. Also indicated was a decrease in sensation to light touch over the dorsum of the right foot. He had no incapacitating episodes in the prior year. The examiner noted the October 2009 MRI of the spine, which showed mild degenerative disc changes with minimal neuroforaminal narrowing at L4-5. The examiner opined that the degenerative changes are not likely symptomatic and are likely age-related. A November 2010 VA treatment record shows complaints of chronic low back pain with flare-ups measuring a 7 on the pain scale. He said the pain was tolerable and denied radiation to the legs. Sitting in one position too long caused flare-ups. Flexion measured to 90 degrees, extension to 10 degrees, and rotation to 50 degrees. Lateral flexion was not measured. Midline and paraspinal tenderness was observed with palpation. A December 2010 treatment record shows that back pain worsened with lifting. Private treatment records from ARMC show complaints of low back pain and reports that the pain interfered with his employment. A September 2010 functional capacity evaluation indicates limited lumbar flexion and extension due to pain; however, measurements were not provided. The evaluation involved dexterity, coordination, walking, bending, squatting, balance, reaching, and stair/ladder climbing. He was able to complete all tasks with limitation. He walked 0.4 miles on a treadmill before having to stop due to pain and dizziness. He completed forward reaching and above the shoulder reaching with some crepitus. He was able to bend but had limited lumbar flexion due to pain and some dizziness. He could kneel for two minutes and crawl for one minute. He had to stop crawling due to back pain. He climbed stairs and a ladder, but had to stop climbing the ladder after 7 repetitions due to dizziness. He was able to lift and carry items weighing between 35 and 45 pounds, and push and pull items ranging from 58 to 68 pounds. He had to stop the lifting exercise due to back, shoulder and neck pain. In the accompanying questionnaire, the Veteran said he could stand as long as he wanted but that it gave him extra pain; he could not lift heavy weights off the floor but could manage if conveniently placed; he could not walk more than half a mile due to pain; he could sit in his favorite chair for as long as he wanted; and he could travel anywhere but it gave him extra pain. The Board has also considered the Veteran's statements. In his September 2010 notice of disagreement, he said his back condition impacted employment and that he had been unemployed for three years largely due to the back condition. Despite his allegation, he specifically said he did not want to apply for TDIU. In his substantive appeal, VA Form 9, he said his chronic pain restricts his ability to do physical labor, to include lifting, and causes him to have significant problems in finding and maintaining employment. Finally, the Board reviewed documents from the Social Security Administration (SSA). The records show that the Veteran's disabilities were not of the severity to prevent employment. A case development worksheet shows that at a recent physical evaluation, his ROM was normal except for flexion and extension. Measurements were not provided. The Veteran reported he could walk up to a mile and lift up to 35 pounds. Thus, SSA found that he was qualified for light labor. Based on the foregoing, the Board finds that a rating in excess of 10 percent for his low back disability is not warranted for any period during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's thoracolumbar flexion has not been limited to 60 degrees or less and the combined range of motion of the thoracolumbar spine has not been less than 120 degrees. Further, none of the objective evidence shows muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Even considering the DeLuca factors and the Veteran's complaints of pain and limitation of motion, the Board cannot find that the severity of his symptoms more nearly approximates the criteria for the next higher rating. At most, the June 2010 examiner found that Deluca factors would limit flexion to 75 degrees, far greater than the limitation required for an increased rating under 38 C.F.R. § 4.71a, Diagnostic Code 5237. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 202. Further, the September 2010 functional evaluation and SSA records show that he is capable of at least light labor. While there have been day-to-day fluctuations in the manifestations of the Veteran's low back disability, the evidence shows no distinct periods of time since service connection became effective, during which the Veteran's condition has varied to such an extent that a rating greater or less than 10 percent would be warranted. Finally, a claim for TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered. However, because the Veteran has explicitly stated throughout the pendency of his claim that he does not seek TDIU, the Board finds that a claim for TDIU has not been raised at this time. III. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the Veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided in April 2009 before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that the duty to assist has been met. The RO obtained VA outpatient and private treatment records. The Veteran submitted statements and private treatment records and was afforded VA examinations in June 2009 and June 2010 that are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the examiners took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disability. Id. Significantly, neither the Veteran nor his representative has 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 Veteran is required to fulfill VA's duty to assist 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). ORDER The appeal seeking an increased rating for immersion foot of the right lower extremity is dismissed. The appeal seeking an increased rating for immersion foot of the left lower extremity is dismissed. Entitlement to an initial rating in excess of 10 percent for a low back disability is denied. REMAND During the pendency of the Veteran's claim seeking an increased rating for his low back disability, he reported radiating pain or possible sciatica. His low back disability has been rated under 38 C.F.R. § 4.71a, DC 5237, using the General Rating Formula for Diseases and Injuries of the Spine. Note (1) under the rating formula specifies that any associated objective neurologic abnormalities should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71(a). The Veteran had VA examinations in June 2009 and June 2010 and while the examiners briefly addressed neurologic complaints, the examiners did not clarify whether he suffered any neurologic disabilities due to his low back. Therefore, the Board finds that a remand is warranted for the scheduling of a VA examination to determine whether the Veteran has suffered any neurologic disabilities related to his low back disability at any time during the pendency of his claim. The Veteran seeks an increased rating for his service-connected low back disability. Unfortunately, the evidence does not support the assignment of an increased schedular rating; however, because the Veteran has alleged that his disability has markedly interfered with employment, the Board must refer this matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine whether he has suffered any neurologic abnormalities related to his low back during the pendency of his claim. The claims file and pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Any indicated studies and tests should be accomplished, and all clinical findings should be reported in detail. Based on review of the record and examination of the Veteran, the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that any neurologic disabilities are related to the service-connected low back disability. The examiner should specifically address the reported "possible sciatica" noted in the June 2009 VA examination. The supporting rationale for all opinions expressed must be provided. 2. After receipt of the VA examiner's report, forward the Veteran's claims file to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration of an extraschedular rating for the low back disability. 3. Thereafter, readjudicate the claims. If any benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and should be provided an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs