Citation Nr: 1305166 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 07-04 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for degenerative bone and disc disease of the lumbar spine with spondylolisthesis, prior to November 1, 2009 (excluding the periods during which a temporary total evaluation was assigned). 2. Entitlement to a disability rating in excess of 40 percent for degenerative bone and disc disease of the lumbar spine with spondylolisthesis, from November 1, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from August 1959 to August 1962. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which continued a 20 percent rating for degenerative bone and disc disease of the lumbar spine with spondylolisthesis. In a February 2010 rating decision for the Veteran's service-connected degenerative bone and disc disease of the lumbar spine with spondylolisthesis, the RO granted: (1) a temporary 100 percent evaluation, effective January 5, 2009, pursuant to 38 C.F.R. § 4.30; (2) a 20 percent rating, effective May 1, 2009; (3) a temporary 100 percent evaluation, effective July 2, 2009, pursuant to 38 C.F.R. § 4.30; and (4) a 20 percent rating, effective November 1, 2009. In September 2011, the Veteran withdrew his request for a Travel Board hearing. See 38 C.F.R. § 20.704(e) (2012). In a January 2012 rating decision, the rating for the Veteran's service-connected degenerative bone and disc disease of the lumbar spine with spondylolisthesis was increased to 40 percent, effective November 1, 2009. As that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The January 2012 rating decision further reflects that service connection for radiculopathy of the left lower extremity associated with the lumbar spine disability was granted. The RO assigned a separate 10 percent evaluation for left lower extremity radiculopathy from December 2008, and assigned a 40 percent evaluation, from May 2010, along with special monthly compensation based on loss of use of the foot; and a total disability rating based on individual unemployability (TDIU), entitlement to automobile and adaptive equipment, and dependent's educational assistance. The Board has characterized the issues as listed on the title page to comport with the status of the ratings currently on appeal. The issue of entitlement to a rating in excess of 40 percent for degenerative bone and disc disease of the lumbar spine with spondylolisthesis, since November 1, 2009, being remanded is addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT Resolving doubt in the Veteran's favor, prior to November 1, 2009, degenerative bone and disc disease of the lumbar spine with spondylolisthesis is manifested by the functional equivalent of forward flexion of the thoracolumbar spine to 30 degrees; ankylosis of the entire thoracolumbar spine and incapacitating episodes of at least six weeks are not shown. CONCLUSION OF LAW Prior to November 1, 2009, the criteria for a 40 percent rating (excluding the periods during which a temporary total evaluation was assigned), but no higher, for degenerative bone and disc disease of the lumbar spine with spondylolisthesis have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2011); 38 C.F.R. §§ 4.1, 4.2, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. March 2005 and November 2008 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a November 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. A July 2012 Formal Finding reflects that the Veteran indicated that he is not in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in April 2005, March 2009 and May 2010; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The examiners reviewed the claims file and the opinions provided were based on objective findings, reliable principles and sound reasoning. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Higher Evaluation In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The criteria for evaluation of disabilities of the spine have been amended in the recent past. The criteria for evaluation of intervertebral disc syndrome (IVDS) were amended effective September 23, 2002, and the criteria for evaluation of disabilities rated based on limitation of motion were amended effective September 26, 2003. Only the current criteria are applicable here; no increase can be granted under the older criteria, as no claim was pending at the time of the amendment. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The general rating formula provides for the following disability ratings for diseases or injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. It applies to Diagnostic Codes 5235 to 5243 unless the disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the general rating formula for diseases and injuries of the spine, ratings are assigned as follows: 1) 10 percent - Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; 2) 20 percent - Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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; 3) 30 percent - Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 4) 40 percent - Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 5) 50 percent - Unfavorable ankylosis of the entire thoracolumbar spine; and 6) 100 percent - 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. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 of the cervical spine is 340 degrees and 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. 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 cervical spine, 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 (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also Diagnostic Code 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Prior to November 1, 2009, the Veteran's degenerative bone and disc disease of the lumbar spine with spondylolisthesis is assigned a 20 percent evaluation. Although the April 2005 VA examination report reflects the functional equivalent of forward flexion to 45 degrees, and flexion to 40 degrees was noted on VA examination in March 2009, the record, to include June 2005 and May 2008 private records, and an August 2007 VA treatment record, show steroid injections for excruciating back pain, along with prescribed pain medications, including oxycodone and tramadol. The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet App 56 (2012). Regardless, the rating was increased to 40 percent, from November 1, 2009, based on findings reported on VA examination in May 2010, and those findings are not dissimilar from the findings reported on VA examination in April 2005 or in March 2009. For example, the April 2005 examination report notes inability to walk more than a few yards, and all three examination reports reflect use of an assistive device for ambulation due to the lumbar spine disability. A May 2005 private record reflects moderate to severe findings, and a September 2008 VA treatment record reflects an increase in the dose of pain medication due to severe back pain. Both the April 2005 and March 2009 VA examination reports reflect not only limited flexion but also limited extension. The April 2005 report of examination also reflects moderate fatigue and weakness, and back pain was noted to prevent activities of daily living, such as shopping, exercise, sports and recreation, and the March 2009 VA examination report notes that he was status post lumbar decompressive laminectomy with fusion. In light of the evidence and Jones, and resolving doubt in the Veteran's favor, the Board finds that the overall disability picture more nearly approximates the criteria required for a 40 percent rating, prior to November 1, 2009, and a 40 percent rating is warranted (excluding the periods during which a temporary total rating has been assigned). A rating in excess of 40 percent is not warranted at any time during the appeal period, prior to November 1, 2009 (excluding the periods during which a temporary total rating is assigned). The examination reports do not reflect incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The April 2005 VA examination report specifically notes no episodes of incapacitation or being bedridden. There is no objective evidence that bed rest has been prescribed by a physician for the service-connected degenerative bone and disc disease of the lumbar spine with spondylolisthesis, prior to November 1, 2009. Thus, a higher rating is not warranted under Diagnostic Code 5243. The April 2005 VA examiner reported no ankylosis of the thoracolumbar spine. Thus, a higher evaluation is not warranted under Diagnostic Code 5237. To the extent that interference with employment has been asserted, and although the record reflects difficulty getting down on the floor and back up again in association with his job in computer sales, such does not establish unfavorable ankylosis of the entire thoracolumbar spine. Regardless, the 40 percent evaluation granted in this decision, prior to November 1, 2009, contemplates impairment in earning capacity, including loss of time from exacerbations due to residuals of degenerative bone and disc disease of the lumbar spine with spondylolisthesis under Diagnostic Codes 5237-5243. 38 C.F.R. § 4.1 (2012). It is not disputed that the Veteran has pain on motion, but the 40 percent disability rating granted in this decision adequately compensates for pain and functional loss due to degenerative bone and disc disease of the lumbar spine with spondylolisthesis. At no time prior to November 1, 2009, (excluding the periods during which a temporary total rating has been assigned), does the evidence establish actual or the functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine. With respect to neurologic impairment, the June 2012 rating decision reflects that service connection for left lower extremity radiculopathy was granted and separately evaluated. Although complaints of radiating pain to the lower extremities were noted on VA examination in April 2005, normal findings were reported with respect to sensory and reflex examination, and a June 2005 private record notes no electrodiagnostic evidence of radiculopathy, neuropathy or myopathy in both lower extremities. An August 2006 private record reflects that complaints of burning in the heels were attributed to plantar fasciitis. Further, the April 2005 VA examination report and a June 2005 private record reflect no bowel or bladder manifestations. In determining that a rating higher than 40 percent is not warranted at any time during the relevant period, prior to November 1, 2009, the Board has accorded greater probative value to the competent medical opinions in regard to the degree of impairment due to degenerative bone and disc disease of the lumbar spine with spondylolisthesis. The examiners reviewed the claims file and provided detailed reports based on objective findings and reliable principles, and the opinions are supported by treatment records. A 40 percent rating, but no higher, is warranted for degenerative bone and disc disease of the lumbar spine with spondylolisthesis, prior to November 1, 2009 (excluding the periods during which a temporary total evaluation was assigned). Extraschedular Consideration 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 disability. The lumbar spine disability is productive of symptoms contemplated in the applicable rating criteria corresponding with the frequency and severity of the condition. The April 2005 VA examination report notes no history of hospitalization, and both the April 2005 report of examination and the March 2009 examination report reflect that the Veteran was employed. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and having considered all of the Veteran's service-connected disabilities, the Board finds the evidence does not establish any unusual or exceptional circumstances, such as marked interference with employment. Thus, prior to November 1, 2009, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. Id. ORDER Prior to November 1, 2009, (excluding the periods during which a temporary total evaluation has been assigned), a 40 percent rating for degenerative bone and disc disease of the lumbar spine with spondylolisthesis is granted. REMAND The Veteran was afforded a VA examination in June 2012 with respect to the severity of his degenerative bone and disc disease of the lumbar spine with spondylolisthesis. The report of examination notes that he was scheduled for a dorsal column spinal stimulator in July 2012 on a temporary basis, and if successful, it would be implanted permanently to control his pain. These records are not associated with the claims file. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). VA is required to conduct a comprehensive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2 (2012); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). After the July 2012 records are associated with the claims file, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected degenerative bone and disc disease of the lumbar spine with spondylolisthesis disability, since November 1, 2009. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the case is REMANDED for the following action: 1. Obtain the July 2012 VA records associated with the dorsal column spinal stimulator, along with updated VA treatment records, compiled since November 2012. 2. Schedule the Veteran for a VA spine examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to accomplish all indicated tests. The current extent of impairment, to include that associated with recurrent flare-ups, must be described. Further, the impact of medication on the disability shown at examination should be noted. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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. 2011). ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs