Citation Nr: 1307791 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-32 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for service-connected disk bulge of the lumbosacral spine at L3-L4, L4-L5, and L5-S1 (lumbosacral spine disability), currently rated 20 percent disabling. 2. Entitlement to an increased rating for service-connected decreased sensation of the right lower extremity, currently rated 20 percent disabling. 3. Entitlement to an increased rating for service-connected decreased sensation of the left lower extremity, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from May 1971 to June 1972, with subsequent periods of active duty for training. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). A November 2012 rating decision denied entitlement to total disability rating due to individual unemployability (TDIU). As a notice of disagreement is not of record for this issue, and therefore, it is not in appellate status. 38 U.S.C.A. § 7105 (West 2002). FINDINGS OF FACT 1. The Veteran's service-connected lumbosacral spine disability has been characterized by pain and flexion limited to 52 degrees at worst (when considering complaints of pain); there is no clinical evidence of incapacitating episodes of back pain necessitating physician-prescribed bed rest 2. The Veteran's decreased sensation of the right lower extremity is manifested by pain and decreased sensation which results in no more than moderate impairment. 3. The Veteran's decreased sensation of the left lower extremity is manifested by pain and decreased sensation, no less than 4/5 muscle strength with no muscle atrophy, which results in no more than moderate impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for lumbosacral spine disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5243 (2012). 2. The criteria for the assignment of a disability rating in excess of 20 percent for decreased sensation of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Codes 8520, 8521 (2012). 3. The criteria for the assignment of a disability rating in excess of 20 percent for decreased sensation of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520, 8521 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, 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. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 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, 129 S.Ct. 1696 (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 RO provided the appellant pre-adjudication notice by letter dated in September 2009 and October 2009. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file or the Veteran's electronic Virtual VA eFolder. The appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In September 2009, the Veteran requested increased ratings for her lumbosacral spine and lower extremity disabilities. The Veteran's lumbosacral spine disability is rated under Diagnostic Code 5237 for lumbosacral strain. The General Rating Formula for Diseases and Injuries of the Spine provides that, 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, the following ratings will apply. A 10 percent evaluation requires evidence of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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 abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation requires evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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. A 40 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. § 4.45 (2011). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. On October 2009 VA spine examination, forward flexion was to 52 degrees with objective evidence of pain but no additional limitation of motion with repetitive movement. On July 2012 VA aid and attendance examination, forward flexion was to 60 degrees with pain at 60 degrees. At the October 2009 VA examination, the examiner reported that lumbar extension was reduced from 28 degrees to 20 degrees, and right lateral flexion was reduced from 20 degrees to 14 degrees due to repetitive movement. On July 2012 VA examination, the examiner stated that the Veteran did not perform repetitive testing because it was too painful. Nevertheless, the record reflects the Veteran retains range of motion in excess of the limits that would permit a higher 40 percent evaluation. The Veteran's service-connected disability could also be rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under Diagnostic Code 5243 intervertebral disc syndrome may also be rated on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25. The rating criteria for intervertebral disc syndrome based on incapacitating episodes provides that a 20 percent rating applies for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating applies where the evidence shows incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. A 60 percent rating applies where evidence shows the incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. An "incapacitating episode" is "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Note (1) to Diagnostic Code 5243. The medical evidence does not reflect the Veteran had incapacitating episodes of intervertebral disc disease requiring bed rest prescribed by a physician and treatment by a physician at any point during the course of claim. In this regard, the Veteran denied having incapacitating episodes on VA examinations in October 2009. In an addendum to the July 2012 VA examination, it was noted that the Veteran did not have any incapacitating episodes. Therefore, a higher rating is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The regulations also mandate that consideration be given to any associated objective neurologic abnormalities (in addition to orthopedic manifestations) separately, under an appropriate diagnostic code. Diseases of the peripheral nerves are rated under 38 C.F.R. § 4.124a. When, as here, a specific disability is not listed in the Rating Schedule, rating is done by analogy to a related condition which approximates the anatomical localization, symptomatology and functional impairment. 38 C.F.R. § 4.20 (2012). In this case, the Veteran's service-connected left and right leg decreased sensation are regarded as analogous to moderate incomplete paralysis of the external popliteal or common peroneal nerve and are separately evaluated 20 percent disabling under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8521. Under Diagnostic Code 8521, a 10 percent rating is warranted for mild incomplete paralysis of the external popliteal nerve; a 20 percent rating requires moderate incomplete paralysis of the external popliteal nerve; a 30 percent rating requires severe incomplete paralysis; and a 40 percent rating requires complete paralysis of the external popliteal nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8521. However, the November 2009 VA peripheral nerves examiner stated that the Veteran's sciatic nerves are the affected nerves. Under Diagnostic Code 8520, a 10 percent evaluation may be assigned for mild incomplete paralysis. Incomplete paralysis with moderate and moderately severe symptomatology warrants a 20 percent and a 40 percent evaluation, respectively. Incomplete paralysis with severe symptomatology and marked muscular atrophy warrants a 60 percent evaluation. An 80 percent rating is warranted for complete paralysis of the nerve when the foot dangles and drops and there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). VA regulations provide that neurological conditions are to be evaluated based upon the impairment of motor, sensory, or mental functioning. 38 C.F.R. § 4.120 (2011). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Considering the evidence of record, the Board finds that the overall disability picture does not more closely approximate the criteria for a disability rating in excess of 20 percent. In this regard, on October 2009, November 2009 and July 2012 VA examinations, the Veteran complained of pain and paresthesia of the lower extremities. Decreased sensation was found on the examinations. However, on October 2009 VA examination, left knee flexion and ankle dorsiflexion strength were 4/5. On November 2009 VA examination, the left ankle reflex was 1+. There was no muscle atrophy. All other sensory, motor and reflex testing of the lower extremities were normal. Although the November 2009 VA examiner stated that paralysis was present, the Veteran exhibited motor control of no less than 4/5 in any lower extremity muscle. Therefore, the Veteran's primary neurological symptom involves sensory impairment of the lower extremities, with complaints of pain in the same area. These findings approximate no more than moderate incomplete paralysis. The examiner who conducted the October 2009 VA examination stated that any other neurological condition besides bilateral decreased sensation of the lower extremities present is unrelated to the service-connected disabilities. The Board notes that the Veteran and her son have stated that the Veteran is entitled to a higher rating because most of her daily functions are severely limited due to her service-connected disabilities. She ambulates with a walker. However, the objective manifestations of her service-connected disabilities, particularly sensation and motor function, do not warrant higher ratings. Extra-Schedular Consideration The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made 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"). See id. When the an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto 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 extraschedular rating. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's disabilities. The Veteran's main symptoms are pain and limitation of motion, which are contemplated in the ratings assigned. As the schedular ratings adequately contemplate the Veteran's disabilities, referral for extraschedular consideration is not warranted. The preponderance of the evidence is against the claims; there is no doubt to be resolved; and increased ratings are not warranted. ORDER Entitlement to a disability rating in excess of 20 percent for lumbosacral spine disability is denied. Entitlement to a disability rating in excess of 20 percent for diminished sensation of the right lower extremity is denied. Entitlement to a disability rating in excess of 20 percent for diminished sensation of the left lower extremity is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs