Citation Nr: 1307667	
Decision Date: 03/07/13    Archive Date: 03/11/13

DOCKET NO.  07-27 710	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to a rating higher than 60 percent for degenerative joint disease (DJD) of the lumbar spine ("low back disability").


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the military from July 1967 to July 1969.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran was scheduled to appear for a hearing before a Veterans Law Judge (VLJ) of the Board in June 2008, however, upon his request for a postponement, it was rescheduled for March 2009.  But even then, the Veteran failed to report and did not request to again reschedule his hearing.  His hearing request, therefore, was deemed withdrawn.  See 38 C.F.R. § 20.704(d) (2012).

The Board subsequently remanded his claim to the RO in March 2011, via the Appeals Management Center (AMC), for further development and consideration.  That additional development especially included obtaining any outstanding VA and Social Security Administration (SSA) records and having him undergo another VA compensation examination reassessing the severity of his low back disability.  Medical comment particularly was needed concerning whether there is unfavorable ankylosis of his entire spine (cervical and thoracic and lumbar (thoracolumbar)) and whether there is associated lower extremity radiculopathy or sciatic neuropathy (sciatica).

He had this additional VA compensation examination in April 2011, and the examiner determined there is no ankylosis or lower extremity radiculopathy associated with the low back disability.  But in June 2011, so just two months after that VA examination, another Veteran with the same name, same disability, and who lived in the same region of the country submitted additional evidence showing he had undergone low back surgery earlier that same month and that his recovery time (convalescence) was estimated at 12 weeks.  He waived his right to have to the RO initially consider this additional evidence.  See 38 C.F.R. §§ 20.800, 20.1304 (2012).  The RO, erroneously thinking that evidence and surgery concerned this Veteran in this appeal, put this evidence into this Veteran's claims file.

So when the Board saw this evidence and surgical record in the file, it, too, mistakenly thought it concerned this Veteran in this appeal, rather than someone else, so the Board resultantly again remanded this claim to the RO via the AMC in October 2011 on the premise of giving the April 2011 VA examiner opportunity to review and consider this additional evidence and provide supplemental comment.  The Board was under the mistaken impression that it needed to know whether this additional evidence and surgery changed the examiner's assessment of the Veteran's low back disability, and particularly in the respects mentioned insofar as whether there is associated ankylosis or lower extremity radiculopathy or sciatica, but, again, under the mistaken assumption this evidence and surgical record concerned this particular Veteran, not instead another Veteran with very similarly identify data.

As one would expect, then, on remand this Veteran in this appeal steadfastly denied that he had undergone surgery on his low back, hence, the indication of this in a December 2011 exchange between the AMC and the VA examiner designated to provide the supplemental medical comment.  As another unfortunate consequence of this administrative error, this Veteran in this appeal mistakenly was awarded a temporary 100 percent rating, effective June 21, 2011, on the erroneous premise that he had undergone low back surgery on that date requiring convalescence.  See 38 C.F.R. § 4.30 ("Paragraph 30").  His prior 60 percent rating for his low back disability resumed 3 months later, as of November 1, 2011.  Therefore, the Board's discussion below will exclude this intervening period during which his low back disability erroneously was rated as 100-percent disabling under the provisions of § 4.30 inasmuch as he admittedly did not actually undergo the surgery and consequent convalescence predicating that higher rating.  He nonetheless has had a total disability rating based on individual unemployment (TDIU) effectively since January 22, 2002, and since his low back disability is his only service-connected disability, his TDIU, meaning his inability to obtain and retain substantially gainful employment, is predicated entirely on this disability.  See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, and 4.19 (2012).


FINDINGS OF FACT

1.  The Veteran's low back disability is manifested by limited forward flexion of the thoracolumbar spine to 20 degrees, and neurologic symptoms of decreased motion in his ankles and absent knee and Achilles jerk.

2.  He does not have ankylosis of his entire spine.


CONCLUSION OF LAW

The criteria are not met for a rating higher than 60 percent for the Veteran's low back disability.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, 4.124a, DCs 5243, 8520 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The VCAA provides that VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of the evidence (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and, (3) that he is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


Ideally, this notice should be provided prior to an initial decision on the claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of this notice.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court observed that a claim of entitlement to service connection consists of five elements:  (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.  See also 38 U.S.C. § 5103(a) (West 2002 & Supp. 2011).  So compliance with the first Quartuccio element requires notice of all five of these elements of the claim, including the "downstream" disability rating and effective date elements.  See id., at 486.

Here, though, the Veteran's claim is not for service connection, rather, for a higher rating for a low back disability that was determined service connected many years ago.  In a claim for an increased disability rating, the VCAA requires VA to notify the claimant that to substantiate the claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect the worsening has on employment (but, here, also keeping in mind the Veteran already has been awarded a TDIU).  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1278 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable, to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular claimant's circumstances; that is, VA need not notify a claimant of alternative DCs that may be considered or notify him of any need for evidence demonstrating the effect that the worsening of the disability has on the particular claimant's daily life.  Vazquez-Flores, 580 F.3d at 1278.  

Moreover, a VCAA notice error, is not presumptively prejudicial, even when shown to have occurred, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this evidentiary burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The Veteran was provided satisfactory notice under the VCAA by way of an August 2006 letter.  Because he filed his claim for a higher rating in 2006, he did not receive the notice required under Vazquez-Flores, regarding the need for evidence showing an increase in severity of his service-connected disability, until May 2008.  But the RO/AMC since has readjudicated his claim for an increase in the rating for this disability in SSOCs issued in July 2008 and August 2011.  So his claim has been reconsidered since providing all required VCAA notice.  The timing defect in the provision of the notice therefore has been rectified ("cured").

The VCAA further provides that VA has a duty to assist the Veteran in the development of the claim.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).  This duty includes assistance in obtaining pertinent medical records, as well as the provision of an examination in some cases when necessary to make a decision on the claim.  Id.  Here, the Veteran's VA treatment records and SSA records have been obtained and associated with the file for consideration, including following and as a result of the Board remanding the claim.  He also has been provided two VA compensation examinations, also following and as a result of the Board remanding the claim, and the reports of these examinations contain the findings needed to address the applicable rating criteria.  Hence, these examinations are adequate for rating purposes such that he does not need to be reexamined.  38 C.F.R. §§ 3.327(a), 4.2.

Indeed, the reasons the Board previously remanded this claim in March and October 2011 was to obtain all outstanding VA treatment records and SSA records, and to have him reexamined to reassess the severity of his low back disability.  All additional records that are relevant to the claim, but not on file, were obtained on remand, and as mentioned he was provided the necessary VA compensation examination reassessing the severity of his low back disability.  Thus, there was compliance with the Board's March and October 2011 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon the Board a concomitant duty to ensure compliance with the terms of the remand); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Accordingly, the Board is proceeding to addressing this claim on its merits.

Increased Rating

Service connection has been in effect for the Veteran's low back disability effectively since April 8, 1998, when it was initially rated as 10-percent disabling under the former DC 5299-5295, signifying he had injured his back and the residuals of that injury were likened to lumbosacral strain.  See 38 C.F.R. § 4.27 (explaining and setting forth the procedure for assigning hyphenated ratings).  His rating was subsequently increased to 20 percent under the former DC 5295 (lumbosacral strain) in a May 2000 rating decision, and then to its current level of 60 percent under the former DC 5293 (intervertebral disc syndrome (IVDS)) in a November 2001 rating decision.  In May 2003, he requested a higher rating, which was denied in September 2003, and his low back disability continued to be rated at 60 percent under DC 5293.  His most recent request for a higher rating was filed in August 2006, and denied in December 2006, however, his DC was changed from the former 5293 to the current 5243.

The regulations for evaluating spinal disabilities, including IVDS, were revised effective September 23, 2002.  67 Fed. Reg. 54345 (August 22, 2002).  Additional revisions were made to the evaluation criteria the following year, as of September 26, 2003, for purposes of updating the rating schedule with current medical terminology and unambiguous criteria to reflect medical advances since last reviewed.  This included renumbering the DCs; the former DC 5293, as an example, is now DC 5243.

The Veteran's low back disability was originally rated before these amendments occurred.  Thus, his current 60 percent rating was based on outdated regulations.  Under the former DC 5293, a 60 percent rating was assigned when the evidence showed pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief.  See 38 C.F.R. § 4.73, DC 5293 (2002).  Under the prior regulations pertaining to spinal disabilities, if a claimant wanted a rating higher than 60 percent, the evidence needed to show residuals of a fractured vertebra, with cord involvement, left the claimant bedridden or requiring long leg braces, or that his entire spine was ankylosed in an unfavorable angle, with marked deformity and involvement of major joints or without other joint involvement.  Id.  Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure"); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].

The Veteran's May 2003 request for a higher rating was analyzed under amended DCs.  Under the then current version of DC 5293, IVDS was to be evaluated in one of two ways, either based on the total duration of incapacitating episodes over the previous 12 months, or by assigning separate evaluations to the various orthopedic and neurologic manifestations and combining them under 38 C.F.R. § 4.25, which would require reference to the codes pertaining to limited motion and neurologic conditions.  38 C.F.R. § 4.71a, DC 5293 (2003).  In the September 2003 rating decision, the Veteran's rating was continued at 60 percent because he was receiving the maximum allowable rating under the previous rating schedule, and, because his symptoms had not shown an increase in severity, it would not have been to his benefit to rate under the new schedule.  See Rating decision dated September 26, 2003.

His most recent request for a higher rating was filed in August 2006, after the rating schedule had been amended one additional time.  IVDS continues to be rated by either the duration of incapacitating episodes or by combining the separate ratings assigned to the orthopedic and neurologic manifestations, but the DC number has been changed from 5293 to 5243.  38 C.F.R. § 4.71a, DC 5243 (2012).  The DCs pertaining to the spine now include range of motion measurements, but reference would still need to be made to the codes pertaining to neurologic conditions, if the claimant's spinal disability manifested in neurologic abnormalities.  Id.  Further, under the rating schedule now in effect, in order to receive a rating higher than 60 percent, the evidence must show the entire spine is ankylosed, or that the separate orthopedic and neurologic manifestations, when combined, result in a higher percentage.  Id.  The Veteran's low back disability is currently rated at 60 percent under DC 5243, and although it was determined through application of the codes in effect at the time, his claim for an increase will be evaluated under the codes presently in effect.

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate DCs.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012).  

When a question arises as to which of two ratings applies under a particular DC, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.

In deciding what rating is appropriate, consideration must be given to the history of the disability and all potentially applicable DCs.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  Where, as here, entitlement to compensation already has been established, and an increase in the disability rating is at issue, the present level of disability is the primary concern.  Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55 (1994).

But the Court also has explained that, in determining the present level of disability, it may be necessary to "stage" the rating if the factual findings show distinct time periods where the service-connected disability has exhibited symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim for a higher rating was filed until VA makes a final decision on the claim.  See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition, else, this would violate VA's anti-pyramiding regulation - 38 C.F.R. § 4.14.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  


The assignment of a particular DC is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One DC may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology.  Any change in DC by a VA adjudicator must be specifically explained.   See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

As already indicated, the Veteran's low back disability is currently rated as 
60-percent disabling under DC 5243 (so under the Formula for Rating IVDS based on Incapacitating Episodes).  Under this DC, if rating based on incapacitating episodes, a 60 percent evaluation is assigned if the total duration of incapacitating episodes is six weeks in the previous 12 months.  The Veteran is already rated at 60 percent, which is the highest possible rating under this formula, so this method will not result in any higher rating.  Therefore, unless the evidence shows his entire spine is ankylosed, the orthopedic (i.e., whether there is limited motion) and neurologic manifestations of his low back disability will have to be separately analyzed, rated, and combined to determine whether the evidence supports the assignment of a higher rating.

When evaluating musculoskeletal disabilities that are based on limitation of motion, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Functional loss may 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.  Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability.  38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint.  38 C.F.R. § 4.59.


Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  Indeed, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  And although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application.  Johnston, 10 Vet. App. at 84-85.  Moreover, although pain may cause functional loss, pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id.; see 38 C.F.R. § 4.40 .

The Veteran had a VA compensation examination in September 2006 in response to is claim for a higher rating for his low back disability.  Regarding orthopedic manifestations, his active flexion was from 0 to 70 degrees, and his passive flexion was from 0 to 60 degrees.  He lost between 20 and 25 degrees of flexion after repetition, due to pain.  His active and passive extension was from 0 to 30 degrees.  

His active and passive lateral flexion was from 0 to 20 degrees, and he lost between 10 and 15 degrees of lateral flexion after repetition, due to pain.  His active and passive lateral rotation was 0 to 20 degrees, with a loss of 10 to 15 degrees after repetition, due to pain.  His thoracolumbar spine was not ankylosed.

Regarding neurologic abnormalities, he did not have urinary or fecal incontinence.  He did complain of frequent urination and leg and foot weakness, but these symptoms were not attributed to his low back disability.  He complained of pain radiating down his legs.  His hip motion was measured 4 out of 5, and ankle, knee, and great toe motion was measured 5 out of 5.  There was no muscle atrophy.  Sensory measures of his lower extremities were 2 out of 2 for vibration, pain, light touch, and position sense.  Knee and ankle jerk were both hypoactive.  See VA examination report dated September 5, 2006.

During a neurosurgery consultation, sensation in his lower extremities was intact.  Proprioception was normal.  Straight leg tests were negative bilaterally.  Range of motion of both ankles was noted to be significantly decreased, but no measurements were provided.  His patellar and Achilles tendon reflexes, bilaterally, were absent.  He was offered decompressive laminotomy, but declined surgery.  See VA treatment note dated April 6, 2007.

He had another neurosurgery consultation in October 2007.  He complained of persistent low back pain and numbing and tingling in his calves.  The evaluating physician noted the Veteran did not describe any symptoms that would be suspicious for sciatica.  See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1703 (31st ed. 2007) ("sciatica" means "a syndrome characterized by pain radiating from the back...and into the lower extremity...and most commonly caused by protrusion of a low lumbar intervertebral disc...").  He did not have bowel or bladder incontinence, and the strength of his lower extremities was rated as 5 out of 5.  Sensation to light touch was intact bilaterally.  The evaluating physician indicated the Veteran would not be a candidate for surgery unless he developed more concerning symptoms of spinal cord compression, such as pain radiating down his leg, or incontinence.  See VA treatment note dated October 12, 2007.

In November 2007, the Veteran told a physician that he had chronic neck and back pain and radiculopathy, but denied bowel or bladder incontinence.  The neurological exam showed cranial nerves II through XII were intact.  Motor function was essentially normal with some mild diminishment of muscle strength.  Deep tendon reflexes were diminished on the right more so than the left.  Light touch, cold, and vibratory discrimination was intact.  See VA treatment note dated November 16, 2007.

The Veteran had an orthopedic consultation in April 2009.  He complained of weakness in his lower extremities with infrequent numbness and tingling.  While in a seated position, he was able to flex forward easily to get his shoes off, however, when standing he only had 20 degrees of forward flexion.  The impression was that he has chronic low back pain with intermittent lower extremity discomfort without specific focal neurologic deficits identified.  See VA treatment dated April 7, 2009.

He had an MRI of his cervical, thoracic, and lumbar spine in December 2010.  Both the lumbar and the thoracic portions of his spine showed stenosis but no significant neural foraminal stenosis.  The cervical spine did show mild neural foraminal stenosis.  See MRI report dated December 29, 2010.

During an April 2011 VA examination, his ranges of motion were again measured.  His thoracolumbar spine had flexion of 0 to 70 degrees and extension of 0 to 20 degrees.  Left and right lateral flexion and rotation were from 0 to 20 degrees.  There was objective evidence of pain on motion, but no additional limited motion due to the pain.  His cervical spine flexion and extension were both from 0 to 40 degrees.  Left and right lateral flexion were both from 0 to 40 degrees, and left and right lateral rotation were both from 0 to 65 degrees.  There was no objective evidence of pain, and no additional limited motion due to pain.  His entire spine was not ankylosed.  His ankle and knee jerk reflexes were 2+, so normal.  His sensory measures were all normal.  His hips, knees, ankles, and toes all had active movement against full resistance.  There was no muscular atrophy.


In summarizing his findings, and particularly in response to important questions the Board had asked, the VA examiner indicated the Veteran did not have lower extremity radiculopathy or sciatic neuropathy, noting that the December 2010 MRI did not show any nerve impingement.  He also denied having any incapacitating episodes on account of his low back disability.  See VA examination report dated April 21, 2011.  

So, based on this evidence, a disability rating higher than 60 percent is unwarranted.  This evidence does not show the Veteran's entire spine is ankylosed, and it has never been at any point since one year prior to filing this increased-rating claim.  Therefore, a higher rating is not possible solely under DCs 5235-5242 of the General Rating Formula for Diseases and Injuries of the Spine.

A higher rating also cannot be obtained, however, by separately rating the orthopedic and neurologic manifestations and then combining them.  

Under the DCs used for rating the spine, forward flexion of the thoracolumbar spine limited to 30 degrees or less warrants a 40 percent rating.  Forward flexion of the cervical spine limited to 15 degrees or less warrants a 30 percent rating.  Forward flexion of the thoracolumbar spine between 30 degrees and 60 degrees; or, forward flexion of the cervical spine between 15 degrees and 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 warrants a 20 percent rating.  Forward flexion of the thoracolumbar spine between 60 degrees and 85 degrees; or, forward flexion of the cervical spine between 30 degrees and 40 degrees; or, combined range of motion of the thoracolumbar spine between 120 degrees and 235 degrees; or, combined range of motion of the cervical spine between 170 degrees and 335 degrees warrants a 10 percent rating.  See 38 C.F.R. § 4.71a, DCs 5235-5243 (2012).


Regarding neurologic manifestations, DC 8520 pertains to the sciatic nerve.  Under DC 8520, complete paralysis, where the foot dangles and drops, there is no active movement possible in the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost, warrants an 80 percent rating.  Incomplete paralysis warrants a 60 percent rating when the symptoms are severe with marked muscular atrophy; a 40 percent rating when the symptoms are moderately severe; a 20 percent rating when the symptoms are moderate; and, a 10 percent rating when the symptoms are mild.  See38 C.F.R. § 4.124a, DC 8520 (2012).

The Veteran's worst range-of-motion measurements were in April 2009 when forward flexion was just to 20 degrees.  This would entitle him to a 40 percent rating, which is the highest rating that can be obtained for limited motion of the spine absent a showing of ankylosis.

His worst neurological manifestations were in April 2007, when the range of motion in his ankles was decreased and his patellar and Achilles reflexes were absent.  Sensation was intact, proprioception was normal, and he had negative straight leg tests bilaterally, thus his symptoms are moderate, which would entitle him to at most a 20 percent rating.

When the 40 percent rating is combined with the 20 percent rating under 38 C.F.R. § 4.25, a total rating of 52 percent results, which is rounded to 50 percent.  Thus, rating his low back disability under the amended codes is of no benefit to him.  Further, because none of the evidence supports the application of a higher rating, a "staged" rating, at any time during the pendency of this appeal, is not warranted either.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board acknowledges his complaints of near-constant pain radiating down into his legs, as well as the medical findings indicating that the range of motion of his back was periodically more limited due to the extent of his pain.  However, it bears repeating that his current rating was calculated under the schedule when it took into consideration his functional impairment due to pain and his alleged neurologic symptoms, so additional compensation for this very same thing would constitute impermissible pyramiding.  See 38 C.F.R. § 4.14, VA's anti-pyramiding regulation, and Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  Additionally, because the evidence needs to show ankylosis in order to obtain a higher rating, the regulations pertaining to functional impairment (38 C.F.R. §§ 4.40 and 4.45) are not for application in this case.  Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997).  

Extra-schedular Consideration

Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of Compensation and Pension Service is authorized to approve an 
extra-schedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."

The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

If the evidence raises the question of entitlement to an extra-schedular rating, 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 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.  See Thun v. Peake, 22 Vet. App. 111 (2008).


Under the approach prescribed by VA, 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.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.

The Board finds that referral for extra-schedular consideration is not warranted in this case.  The Veteran's reported symptoms (i.e., chronic pain and limited motion) are contemplated by the rating criteria.  The same is true of his associated lower extremity neurological impairment, as evidenced by the contemplation of this under the former DC 5293 and current 5243.  There are no symptoms left uncompensated or unaccounted for in his assigned schedular rating.  The evidence, then, does not indicate his low back disability presents "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b) (2012).  The fact that circumstances specific to a particular claimant may cause the effects of a service-connected disability to be more profound in that claimant's case does not ordinarily provide a basis for extra-schedular consideration.  Id.  Rather, the impairment must be one that is so unusual as to be unanticipated by the rating criteria.  See id.  Because the Board finds that the symptoms and functional limitations caused by the Veteran's low back disability are contemplated by the rating criteria, there is no need to consider whether it causes marked interference with employment.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Indeed, the mere fact that he already has been granted a TDIU for several years now, effectively since January 22, 2002, is itself concession that he is unemployable because of this service-connected disability, since it is his only service-connected disability.  Concluding he is entirely unemployable because of this disability is a level of occupational impairment that is even greater than the "marked interference with employment" contemplated by an extra-schedular rating.  The Veterans Court (CAVC) has recognized that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1)  . . . and for purposes of a TDIU claim under 38 C.F.R. § 4.16."  Kellar v. Brown, 6 Vet. App. 157, 162 (1994).  The former requires marked interference with employment; whereas the latter requires evidence of unemployability.  Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008), ("[E]xtraschedular consideration [under § 3.321] may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the Veteran is totally unemployable.").  Consequently, the Board finds that the available schedular evaluation is adequate to rate this disability, and therefore referral for extraschedular consideration is unwarranted.  Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).


ORDER

The claim for a rating higher than 60 percent for the low back disability is denied.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs