Citation Nr: 1312332 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-07 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an evaluation in excess of 10 percent prior to October 20, 2011, and in excess of 20 percent thereafter, for the service-connected degenerative disc disease (DDD) of the lumbar spine, to include whether a separate compensable evaluation was warranted for radiculopathy of the left lower extremity prior to June 18, 2012. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from July 2004 to November 2007 and from February 2009 to March 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which continued the 10 percent disabling rating for DDD of the lumbar spine. In an August 2012 supplemental statement of the case (SSOC), the RO awarded an increased 20 percent rating for the lumbar spine effective October 20, 2011. As the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, it follows that his claim remains in controversy as less than the maximum benefit available has been awarded. See AB v. Brown, 6 Vet. App. 35 (1993). During the pendency of the appeal, in August 2012, the RO also awarded service connection for radiculopathy of the left lower extremity associated with DDD of the lumbar spine and assigned a 10 percent rating effective from June 18, 2012. The General Rating Formula for Diseases and Injuries of the Spine provides for the evaluation of any associated objective neurologic abnormalities; consequently, the claim pertaining to radiculopathy of the left lower extremity is part and parcel of the claim for a higher rating for DDD of the lumbar spine. 38 C.F.R. § 4.71a. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's DDD of the lumbar spine more nearly approximates the criteria for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; there was no evidence of forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. 2. A separate rating for left lower extremity radiculopathy is warranted throughout the appeal period; it more nearly approximates the criteria for mild, incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 20 percent evaluation, and no higher, have been met for the service-connected DDD of the lumbar spine beginning on March 6, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.71a, including Diagnostic Codes 5235-5243 7806 (2012). 2. The criteria for the assignment of a 10 percent evaluation, and no higher, have been met for the service-connected left lower extremity radiculopathy beginning on March 6, 2009. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.71a, including Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the Veteran's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice in connection with his claim for increase by letter dated in June 2009. This letter notified the Veteran of how VA determines the disability rating and effective date. The RO additionally provided notice of the diagnostic criteria under the General Rating Formula for Diseases and Injuries of the Spine. VA has obtained service treatment records, assisted the Veteran in obtaining evidence (post-service VA and private treatment records), provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the RO and Board, which he declined. All known and available records relevant to the issue on appeal has been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. II. Analysis The Board notes it has reviewed all of the evidence in the Veteran's claims file and Virtual VA record (VA's electronic database storage, which contained additional treatment records reviewed by the RO in the August 2012 SSOC), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran appealed the decision that continued the 10 percent rating for the service-connected DDD of the lumbar spine. The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In August 2012, the RO awarded an increased 20 percent rating for DDD of the lumbar spine effective from October 20, 2011. The RO additionally awarded service connection for radiculopathy of the left lower extremity associated with DDD of the lumbar spine and assigned a separate 10 percent rating effective from June 18, 2012. As noted in the Introduction, the General Rating Formula for Diseases and Injuries of the Spine provides for the evaluation of any associated objective neurologic abnormalities and thus, the claim pertaining to radiculopathy of the left lower extremity is part and parcel of the claim for a higher rating for DDD of the lumbar spine. 38 C.F.R. § 4.71a. His claim remains in controversy as less than the maximum benefit available has been awarded. See AB, supra. 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. VA should interpret 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. 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 apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594. However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. 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. 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. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Under the General Rating Formula for Diseases and Injuries of the Spine, for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): 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, ratings are assigned as follows: 100% Unfavorable ankylosis of the entire spine; 50% Unfavorable ankylosis of the entire thoracolumbar spine; 40% 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; 30% Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 20% 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; and 10% 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. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) 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 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2012). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: a finding that 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. 38 C.F.R. § 3.321(b)(1). The service-connected lumbar spine disability has been assigned a 10 percent rating prior to October 20, 2011, and 20 percent thereafter, under 38 C.F.R. § 4.71a, Diagnostic Code 5242, under the General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243, delineated above. 38 C.F.R. § 4.71a. Aside from the General Rating Formula For Diseases and Injuries of the Spine, there are other provisions for rating disability of the spine when certain manifestations are present. These include incapacitating episodes and neurological problems. While there has been some radiographic evidence showing narrowing of disc space, there has been no evidence of incapacitating episodes of intervertebral disc syndrome (IVDS) as defined by the statute to warrant a higher rating under Diagnostic Code 5243. Id. Notably, there were no incapacitating episodes reported during VA examination in December 2009. While the June 2012 VA examiner found the Veteran to have IVDS of the thoracolumbar spine, the examiner specifically found that the Veteran did not have any incapitating episodes over the past 12 months due to IVDS. The Board has also considered whether a separate disability rating would be appropriate for neurological findings appropriate to the site of the lumbar spine under the diagnostic codes pertinent to rating neurological disorders prior to June 18, 2012. The Board finds that the separate 10 percent rating, and no higher, is warranted effective from the date of claim (March 6, 2009). The Veteran complained of occasional left lower extremity paresthesias dating back to February 2009. VA outpatient treatment records dated in October 2009 document complaints of low back pain with fifth toe numbness. The Veteran was tentatively diagnosed with radiculopathy of L5, left, at the time. Upon VA examination in December 2009, the Veteran complained of an abnormal burning sensation over the left anterior thigh and complete numbness of the left little toe. A December 2009 neurology note contains complaints of numbness in the left little toe and some burning at the left anterior thigh. The impression was left lateral femoral cutaneous nerve syndrome. A May 2010 neurology note further documents complaints of numbness and burning in the left little toe. While a separate 10 percent rating for left lower extremity radiculopathy is warranted throughout the appeal period, at no time has there been objective evidence of moderate, incomplete, paralysis of the sciatic nerve to warrant a rating in excess of 10 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Notably, the November 2009 electromyography (EMG) report was normal with no actual evidence of left lumbar radiculopathy. The June 2012 VA examiner found radicular pain and symptoms due to radiculopathy; however, both intermittent pain (usually dull) and dyesthesias were classified as mild. There was no evidence of constant pain, or numbness. There was involvement of L4, L5, S1-S3. The examiner indicated the severity of radiculopathy was considered mild and only the left side was affected. The Veteran did not have any other neurologic abnormalities or findings related to his DDD of the lumbar spine such as bowel or bladder impairment or pathologic reflexes. Should his disability picture change in the future, he may be assigned a higher rating for left lower extremity radiculopathy. See 38 C.F.R. § 4.1. The Board shall now consider the service-connected DDD of the lumbar spine under the orthopedic diagnostic codes (under the General Rating Formula For Diseases and Injuries of the Spine). Having carefully considered the Veteran's claim in light of the evidence of record, as well as the applicable law and regulation, and affording the Veteran all reasonable doubt, the Board finds that a 20 percent evaluation is appropriate throughout the entire appellate period. 38 C.F.R. § 4.7; see Hart, supra. Notably, the DDD of the lumbar spine was productive of painful motion and limited range of motion to approximately 20 degrees in all directions dating back to October 2009. While this does meet the criteria for a 40 percent rating (forward flexion of the thoracolumbar spine 30 degrees or less), the Board finds this to be an isolated finding. Shortly, thereafter upon VA examination in December 2009, forward flexion was to 80 degrees, extension was to 15 degrees, and bilateral rotation and flexion were to 30 degrees; this would only meet the criteria for a 10 percent rating (forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees). However, giving the Veteran the benefit of the doubt, the Board finds that the overall disability picture more nearly approximates the criteria for a 20 percent rating throughout the appellate period, in addition to the separate 10 percent for left lower extremity radiculopathy awarded above. That being said, a rating in excess of 20 percent is not warranted at any stage during the appellate period. In this regard, physical therapy notes dated in August 2011 show flexion to 30 degrees and extension to 20 degrees. VA outpatient treatment records dated in October 2011 show flexion to 60 degrees and extension to 20 degrees. Upon VA examination in June 2012, flexion was to 55 degrees and extension was to 20 degrees. Right lateral flexion was to 25 degrees and left lateral flexion was to 20 degrees. Right lateral rotation was to 20 degrees and left lateral rotation was to 25 degrees. While there was evidence of painful motion of the thoracolumbar spine and additional limitation of motion during VA examination in June 2012, flexion was at worse limited to 50 degrees after repetitive-use testing. Extension was still possible to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, and bilateral lateral rotation to 20 degrees. The preponderance of the evidence is against a finding that forward flexion of the thoracolumbar spine more nearly approximates limitation to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine to warrant a 40 percent rating. There was no functional loss due to fatigability, incoordination, or weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 206-7. The Board has considered a higher rating under Diagnostic Code 5003 for degenerative arthritis; however, the Veteran's lumbar spine is already rated based on limitation of motion as delineated above. 38 C.F.R. § 4.71a. In sum, a 20 percent rating, and no higher, is warranted throughout the appeal period for the DDD of the lumbar spine. A separate 10 percent rating, and no higher, for left lower extremity radiculopathy is warranted throughout the appeal period. "Staged" ratings, other than what has been delineated above, are not warranted. 38 C.F.R. § 4.71a; Hart, supra. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. A claim for total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The December 2009 VA examiner noted the Veteran had a desk job and his back disability did not affect his job to any significant extent. While the June 2012 VA examiner opined there was functional limitation at work due to difficulty with prolonged standing and walking, repetitive bending and stooping, and unrestricted lifting, the Veteran continued to be employed. He informed the examiner that he simply got up and walked around at work during the day at various times to relieve lumbar discomfort. As there is no objective evidence of unemployability due to the service-connected disability, further consideration of TDIU is not warranted. The discussion above reflects that the symptoms of the Veteran's DDD of the lumbar spine are contemplated by the applicable rating criteria. The competent medical evidence of record shows that DDD of the lumbar spine is primarily manifested by pain and limitation of motion due to pain. The applicable diagnostic codes used to rate the Veteran's disability provide for ratings based on limitation of motion, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A 20 percent evaluation, and no higher, beginning on March 6, 2009, for the service-connected DDD of the lumbar spine is granted, subject to the regulations controlling disbursement of VA monetary benefits. A 10 percent evaluation, and no higher, beginning on March 6, 2009, for the service-conned left lower extremity radiculopathy is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs