Citation Nr: 1313044 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 06-27 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for lumbar degenerative disc disease, currently evaluated as 40 percent disabling. 2. Entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from March 1984 to July 1995. This appeal originally came to the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In November 2008, the appellant testified at a Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing testimony is associated with the claims file. In February 2009, the Board remanded the matter for additional evidentiary development. In a June 2011 decision, the Board denied a rating in excess of 40 percent for lumbar degenerative disc disease. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2012, while the matter was pending before the Court, the appellant's then-attorney and a representative of VA's Office of General Counsel filed a joint motion for remand. In a January 2012 order, the Court granted the parties' motion, vacated the Board's June 2011 decision, and remanded the matter for action consistent with the terms of the joint motion. In September 2012, the Board remanded the matter to the RO via the Appeals Management Center for additional evidentiary development as directed by the joint motion. Following completion of that development, in a February 2013 rating decision, VA granted entitlement to service connection for radiculopathy of the right and left lower extremities and assigned an initial 10 percent rating for each extremity, effective November 15, 2004. Absent any indication in the record currently available to the Board that the appellant has initiated an appeal with respect to the initial ratings or effective dates assigned for his right and left lower extremity radiculopathy, those issues are not in appellate status. The issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part FINDINGS OF FACT At no time during the appellate term has the appellant's lumbar degenerative disc disease been manifested by either unfavorable ankylosis or incapacitating episodes of intervertebral disc syndrome totaling at least 6 weeks in any 12-month period of the claim. The appellant's disability picture is not exceptional or unusual such that the schedular criteria are inadequate. CONCLUSIONS OF LAW The criteria for a rating in excess of 40 percent for lumbar degenerative disc disease are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.16, 4.71a, Diagnostic Code 5242 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. In an April 2005 letter issued prior to the initial decision on the claim, VA notified the appellant of the information and evidence needed to substantiate and complete his claim, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012). A March 2009 letter provided notice how ratings and effective dates are assigned. The claim was most recently adjudicated in a February 2013 supplemental statement of the case. In addition to the notice discussed above, at a conference held in connection with the November 2008 Board hearing, and during the hearing itself, the undersigned Veterans Law Judge discussed the issue on appeal with the appellant and his representative, including the type of evidence required in order to prevail in the claim. 38 C.F.R. § 3.103 (2012); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010). The appellant and his representative acknowledged full understanding of all matters discussed and the undersigned held the record open for a period of 45 days following the hearing for the purpose of allowing the appellant to submit additional evidence. The issue of VCAA notification was discussed in detail in its now vacated June 2011 decision. Neither the January 2012 joint motion for remand nor the Court's order vacating the Board's 2011 decision, however, contains any reference to VCAA notice deficiencies or the Board's discussion thereof. In light of the Court's repeated admonitions regarding the undesirable specter of piecemeal litigation, the Board is confident that if there had been any prejudicial deficiencies regarding VA's compliance with its duty to notify, such would have been raised by the Court. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board observes that the sole basis for the January 2012 joint motion for remand was to obtain a medical opinion addressing whether the appellant's claimed bilateral leg pain was related to his service-connected lumbar degenerative disc disease. Pursuant to the Board's remand instructions, the appellant underwent VA medical examination in December 2012. Based on the medical opinion received, as set forth above, VA has awarded service connection for peripheral neuropathy of the left and right lower extremities. The Board notes that the parties identified no other deficiencies in VA's duty to assist or in the Board's discussion thereof in its now vacated June 2011 decision. The Board further notes that neither the appellant nor his representative have challenged the adequacy of the December 2012 medical examination, nor has the appellant alleged that his disability has increased in severity since he was last examined for VA compensation purposes. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that in the absence of a challenge, the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary. Neither the appellant nor his representative has argued otherwise. Applicable Law Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 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. When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see DeLuca v. Brown, 8 Vet. App. 202 (1995). The lumbar spine is considered a group of minor joints. 38 C.F.R. § 4.45(f). The criteria for evaluating disabilities of the spine are contained in a General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (pertaining to degenerative arthritis of the spine). That formula 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 are assigned: A 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. Several notes to the General Rating Formula for Diseases and Injuries of the Spine provide additional guidance. Under Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar 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. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. In addition to the General Rating Formula for Diseases and Injuries of the Spine, an intervertebral disc syndrome may be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that when intervertebral disc syndrome is productive of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months, a 40 percent rating is assigned. When incapacitating episodes have a total duration of at least six weeks during the past 12 months, a maximum 60 percent rating is assigned. Note (1) following 38 C.F.R. § 4.71a, Diagnostic Code 5243 provides that 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. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Applying the facts in this case to the legal criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 40 percent for any period of the claim. The record on appeal shows that in an October 1995 rating decision, VA granted entitlement to service connection for degenerative disc disease of the lumbar spine and assigned an initial 10 percent disability rating, effective July 28, 1995. VA subsequently increased the disability rating for the appellant's degenerative disc disease of the lumbar spine to 40 percent, effective April 15, 2002, and that rating has remained in effect since. In February 2005, VA received the appellant's most recent claim of entitlement to an increased rating for his service-connected low back disability, the subject of this appeal. The appellant contends that the severity of his low back disability warrants a rating in excess of 40 percent. The appellant's disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. As noted in order to warrant a rating in excess of 40 percent under these criteria, the appellant's disability must be manifested by unfavorable ankylosis of the entire thoracolumbar spine. The record in this case shows that that the appellant's disability, however, is not manifested by ankylosis or fixation of the spine, either favorable or unfavorable. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5) (defining ankylosis as fixation of the entire thoracolumbar spine); see also Lewis v. Derwinski, 3 Vet. App. 259 (1992) (ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure"). Rather, repeated VA medical examinations and voluminous VA and private clinical records consistently establish that the appellant retains motion in his spine, albeit limited. He has not contended otherwise. At the most recent VA medical examination in December 2012, for example, despite the examiner's notation of a history of lumbar ankylosis, range of motion testing actually showed that the appellant's spine achieved forward flexion to 40 degrees, extension to 10 degrees, lateral flexion to 10 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 20 degrees, with pain throughout the entire range of motion. Flexion decreased by 10 degrees with repetitive testing. Again, repeated examination over the course of the appeal consistently shows that the appellant retains at least some lumbar motion. By definition, the fact that his spine manifests range of motion, albeit limited, is evidence of the absence of unfavorable ankylosis. Absent a finding of unfavorable ankylosis which has been neither shown nor alleged, the assigned 40 percent rating is the maximum schedular rating available for under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (pertaining to degenerative arthritis of the spine). In reaching this determination, the Board notes that the General Rating Formula provides that associated objective neurological symptoms are rated separately under an appropriate diagnostic code. As set forth above, VA has awarded separate 10 percent ratings for right and left lower extremity radiculopathy. The record does not show, nor has the appellant contended, that he exhibits any other objective neurologic abnormalities associated with his service-connected lumbar spine disability. Indeed, a review of the record on appeal, including multiple VA medical examination reports and voluminous VA and private clinical records, shows that the appellant has consistently denied symptoms such as bowel or bladder impairment. At the most recent examination in December 2012, for example, the examining VA neurologist concluded that other than pain and decreased sensation in the lower extremities, symptoms which have been expressly contemplated in the 10 percent ratings assigned for lower extremity radiculopathy, the appellant exhibited no other neurologic abnormalities related to the service-connected low back disability, including bowel or bladder problems and pathologic reflexes. Given the characterization of the appellant's disability, i.e., lumbar degenerative disc disease, and MRI findings of spinal stenosis, the Board has considered whether the appellant would be entitled to a rating in excess of 40 percent under the rating criteria for evaluating intervertebral disc syndrome but concludes that these criteria have not been met for any period of the claim. The evidence does not show, nor does the appellant contend, that his service-connected low back disability was productive of incapacitating episodes totalling at least 4 weeks in a 12-month period for any period of the claim. Although the appellant has previously claimed that he has been prescribed bed rest, any assertion to this effect is outweighed by the objective evidence of record, including clinical records spanning many years documenting multiple medical visits for complaints of back pain. These records document treatment by epidural steroid injections, physical therapy, and medication, but contain no prescriptions for bed rest or other notations of incapacitating episodes, particularly incapacitating episodes having a duration of at least 6 weeks in any 12 month period. VA medical examinations have also noted that the appellant's disability is not shown to produce incapacitating episodes. The Board finds that its conclusion is strengthened by multiple notations in the record suggesting symptom magnification on the part of the appellant. For example, VA clinical records of outpatient visits assembled over the course of this claim note multiple episodes of positive Waddell's signs in connection with the appellant's complaints of back pain. Additionally, at the most recent VA medical examination in December 2012, the examiner commented that based on objective neurological evaluation and diagnostic testing, including lumbar spine MRI's and X-rays, the appellant's degree of pain and functional impairment were out of proportion to the objective evidence for lumbar degenerative joint disease and radiculopathy. In view of these findings, the preponderance of the evidence is against finding entitlement to a rating in excess of 40 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. In reaching its decision, the Board considered whether the appellant may be entitled to an extraschedular rating pursuant to 38 C.F.R. § 3.321. Under 38 C.F.R. § 3.321, in exceptional cases 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. 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 period of hospitalizations as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). After reviewing the record, however, the Board find no basis for further action on this question as there is no indication of an exceptional or unusual disability picture such that the schedular criteria for the appellant's service-connected low back disability are inadequate. The symptoms associated with the appellant's service-connected disability, including pain and limitation of motion, are fully contemplated by the Rating Schedule and were expressly considered by the RO in assigning the current 40 percent rating. Moreover, while the appellant claims to be considering surgery, his service-connected low back disability has not been shown to have necessitated frequent periods of hospitalization and he has not contended otherwise. The record shows that the appellant was hospitalized during the pendency of the claim for nonservice-connected alcohol induced pancreatitis, but not for his service-connected low back disability. The claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to a rating in excess of 40 percent for lumbar degenerative disc disease is denied. REMAND The Veteran alleges that his back disorder, to include his radicular pain, precludes substantially gainful employment. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is "part of," and not separate from, a claim of entitlement to an increased rating. Id. at 453. While the this issue has yet to be certified for appeal, let alone initially addressed by the RO, in light of the binding precedent set forth in Rice, the Board is compelled to remand this issue. Therefore this issue is REMANDED for the following action: The RO/AMC must formally adjudicate the issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disorders on an extraschedular basis. Should this benefit be denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case, including all laws and regulations governing the award of a total disability rating based on individual unemployability due to service-connected disorders. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs