Citation Nr: 1314237	
Decision Date: 04/30/13    Archive Date: 05/15/13

DOCKET NO.  03-19 807	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California

THE ISSUES

1.  Entitlement to service connection for a left knee disability to include as secondary to the service-connected lumbar spine disability.  

2.  Entitlement to service connection for a right knee disability to include as secondary to the service-connected lumbar spine disability.  

3.  Entitlement to a disability rating higher than 20 percent for discogenic disease and arthritis of the lumbar spine with laminectomy, partial facetectomy, and neuroforaminotomy, L2-L4, prior to January 27, 2003.  

REPRESENTATION

Veteran represented by:	Kathy A. Lieberman, Attorney

ATTORNEY FOR THE BOARD

Evan M. Deichert, Associate Counsel





INTRODUCTION

The Veteran served on active duty from August 1966 to August 1969.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision, dated in October 2001, of a Department of Veterans Affairs (VA) Regional Office (RO).  

In July 2003, the Veteran withdrew his request for a hearing before the Board. 

In September 2005 and June 2007, the Board remanded the case to the RO for additional development.  

In a decision in June 2008, the Board denied the claim of service connection for a left knee disability, denied a rating higher than 20 percent for a lumbar spine disability before October 26, 2005, and granted a 40 percent rating for a lumbar spine disability from October 26, 2005.  The Board remanded the claim of service connection for a right knee disability.  

The Veteran appealed the Board decision in June 2008 to the United States Court of Appeals for Veterans Claims (Court).  In January 2010, in a Memorandum Decision, the Court set aside, in part, the Board's decision that denied the claim of service connection for a left knee disability and that denied a rating higher than 20 percent for disability of the lumbar spine before October 26, 2005, and the case was remanded to the Board consistent with the decision.  

In a decision in July 2010, the Board again denied the claim for a rating higher than 20 percent for a lumbar spine disability before October 26, 2005.  The Board also remanded the claims of service connection for left and right knee disabilities.  







The Veteran appealed the Board's decision in July 2010 to the Court as to the denial of a higher rating for a disability of the lumbar spine.  In an Order dated in June 2011, the Court granted a Joint Motion for Remand of the parties, the Secretary of VA and the Veteran, who was then represented by different counsel, and vacated the Board's decision and remanded the case to the Board for readjudication consistent with the Joint Motion. 

In a decision in January 2012, the Board granted the Veteran's claim for a higher rating from January 27, 2003 to October 26, 2005, but denied the claim for a higher rating prior to January 27, 2003.  The Veteran again appealed to the Court.  In an Order dated in September 2012, the Court granted a Joint Motion for Remand and vacated the part of the Board's decision that denied a higher rating; the Joint Motion did not address the issue of a higher rating from January 27, 2003 to October 26, 2005, so only the issue of entitlement to a higher rating for the earlier period remains on appeal.  

The development ordered by the Board in its September 2005 and June 2007 remands has been completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  Also, where a case has been remanded to the Board, the order of the Court constitutes the law of the case, and the Board is bound to follow the Court's mandate.  See Winslow v. Brown, 8 Vet. App. 469, 472 (1996).

The claims of service connection for a left knee disability and for a right knee disability are REMANDED to the Department of Veterans Affairs Regional Office. 








FINDING OF FACT

Prior to January 27, 2003, the service-connected discogenic disease and arthritis of the lumbar spine with laminectomy, partial facetectomy, and neuroforaminotomy, L2-L4, was manifested by chronic low back pain, moderate limitation of motion (80 degrees of forward flexion, 10 degrees of extension, 15 degrees of lateral flexion, and 20 degrees of rotation), and degenerative disc disease confirmed by X-ray; there was no objective evidence to demonstrate that the lumbar spine disability was productive of severe impairment or evidence that there were incapacitating episodes having a total duration of at least four weeks during a 12-month period, or evidence of radiculopathy.  


CONCLUSION OF LAW

The criteria for a rating higher than 20 percent for discogenic disease and arthritis of the lumbar spine with laminectomy, partial facetectomy, and neuroforaminotomy, L2-L4, before January 27, 2003, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a including Diagnostic Codes 5292, 5295 (effective prior to September 26, 2003), Diagnostic Code 5293 (effective on September 23, 2002), and Diagnostic Codes 5237, 5242, 5243 (effective on September 26, 2003); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2011).  

The Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  




Letters of May 2003, October 2004, and June 2007 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claim was subsequently readjudicated, most recently in a December 2007 Supplemental Statement of the Case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  VA examinations were conducted in November 1999, in October 2000, in October 2005, and in July 2007.  In a May 2005 brief, the Veteran's former representative contended that the October 2000 examination was inadequate.  The Board disagrees.  That examination contains sufficient information to rate the Veteran under both the old and new Diagnostic Codes.  Each of the other examinations contains similar information.  These examinations are thus all adequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  






There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1  

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 for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The service-connected discogenic disease and arthritis of the lumbar spine with laminectomy, partial facetectomy, and neuroforaminotomy, L2-L4, is rated as 20 percent disabling before January 27, 2003 under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective prior to September 26, 2003).  


The Veteran filed his claim for increase in September 2000, and during the period considered in his appeal, the regulations pertaining to evaluating disabilities of the spine were revised, effective in September 23, 2002, and again effective September 26, 2003.  When the rating criteria are amended during the course of the appeal, the Board considers both the old and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change.  VAOPGCPREC 3-2000.  As the second revision occurred after the period on appeal now, the revisions effective September 26, 2003, are not applicable and will not be discussed.  

In this case, the pertinent medical evidence consists of VA examinations conducted in November 1999 with an addendum in December 1999, in October 2000, in October 2005, and in July 2007, VA records, and private medical records. 

Criteria Effective Prior to September 23, 2002

Under the "old" rating criteria for 38 C.F.R. § 4.71a, Diagnostic Code 5010, arthritis due to trauma established by X-ray findings is rated as degenerative arthritis on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved.  

Under 38 C.F.R. § 4.71a, Diagnostic Code 5292, for evaluating limitation of motion of the lumbar spine, the criteria for the next higher rating, 40 percent, which is the maximum allowable under the code, requires severe limitation of motion.  

The medical evidence shows that the Veteran's lumbar spine is not more than moderately limited in motion prior to January 27, 2003.  

For example, at the time of a VA examination in November 1999, the range of motion of the lumbar spine was as follows: 80 degrees of forward flexion, 15 degrees of extension, 30 degrees of lateral flexion, and 35 degrees of rotation.  



At the time of a VA examination in October 2000, the range of motion of the lumbar spine was relatively consistent with the 1999 findings, as follows:  90 degrees of forward flexion, 10 degrees of extension, 15 degrees of lateral flexion, and 20 degrees of rotation.  The VA examiners did not characterize the findings of range of motion as severe, and there is no other evidence to suggest that the range of motion of the lumbar spine was severe at that time.  

Although the rating criteria before September 23, 2002, do not define "severe" limitation of motion, the current criteria for normal ranges of motion of the lumbar spine are: forward flexion of the lumbar spine from 0 degrees to 90 degrees, extension from 0 degrees to 30 degrees, left and right lateral flexion from 0 degrees to 30 degrees, and left and right lateral rotation from 0 degrees to 30 degrees.  

In general, as a matter of statutory construction, words are given their ordinary meaning.  The ordinary meaning of "severe" in the sense of degree of intensity or measure, is extreme, for example, extreme pain.  See Webster's New College Dictionary, Third Edition (2008), 1035.  

Comparing the findings most favorable to the Veteran from the VA examinations in 1999 to 2002 to the VA criteria for normal ranges of motion of the lumbar spine, at worst 80 out of 90 degrees of forward flexion or about 90 percent of full range of flexion, 15 out of 30 degrees of extension or 50 percent of full range of extension,  20 degrees out of 30 degrees of lateral flexion or about 66 percent of full lateral flexion, and 30 degrees out of 30 degrees of rotation or full rotation does not more nearly approximate or equate to severe limitation of motion of the lumbar spine, that is, findings at the extreme or opposite end of the range of motion.  Therefore, before January 27, 2003, the criteria for a rating higher than 20 percent based on limitation of motion were not met. 






In considering range of motion, painful motion is a factor.  With regard to the examination in November 1999, the VA examiner emphasized in a December 1999 addendum to the examination report that the Veteran had pain at the extremes of motion in the lumbar spine, that the Veteran had no demonstrable weakness, and that he exhibited no incoordination.  And while the VA examiner remarked that the Veteran had fatigue with ambulation greater than two blocks, such fatigue was not described as actually limiting the range of motion of the Veteran's lumbar spine to a severe degree.  Moreover, the VA examiner in October 2000 did not furnish clinical findings regarding factors that may have further decreased the range of motion of the lumbar spine.  Thus, considering the foregoing findings, the Board finds that the evidence does not demonstrate that pain on use or during flare-ups results in additional functional limitation to the extent that the lumbar spine is severely limited in motion before January 27, 2003 under Diagnostic Code 5292.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  

The September 2012 Joint Motion specifically instructed the Board to consider whether the Veteran's symptoms warrant an increased, 60 percent rating under the "old" Diagnostic Code 5293.  Under the "old" rating criteria for rating intervertebral disc syndrome, the criteria for the next higher rating, 40 percent, are evidence of severe recurring attacks with intermittent relief.  The criteria for a 60 percent rating requires evidence of pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disability, and little intermittent relief.  38 C.F.R. § 4.71a, Diagnostic Code 5293.  

The objective evidence does not show that the Veteran meets the criteria for a higher 40 or 60 percent rating for the period before January 27, 2003.  






On VA examinations in November 1999, in October 2000, in October 2005, and in July 2007, despite radiographic evidence of diffuse degenerative disc disease in the lumbar spine, objective manifestations of a severe disc syndrome were not shown.  In November 1999, for example, although there was decreased sensation at the left L5 distribution, there was a negative straight leg raising test, the Veteran had 5/5 motor strength of all major muscle groups, and deep tendon reflexes were 2/4 and symmetric.  Further, X-rays showed mild degenerative disc disease at L1-2 and L2-3.  X-rays of the lumbar spine in April 2000 showed multi-level degenerative disc changes to include markedly narrowed space at L4-5.  

As for a markedly narrowed space at L4-5, in December 1999, a private physician, stated that the Veteran had lumbar radiculitis with left foot drop.  On VA examination in October 2000, there was a negative straight leg raising test, bilaterally, and the Veteran was neurologically intact in the lower extremities from L1 to S1 in the motor and sensory distributions.  VA records generally show findings such as decreased sensation and motor strength in the lower extremities, which are not inconsistent with those of the VA examination reports, but the Veteran also has diabetes mellitus, affecting neuropathy in the lower extremities.  

In November 2004, May 2005, and August 2005, diabetic neuropathy was diagnosed.  And on evaluation at that time sensation was intact in the right foot and diminished in the left foot.  

VA records show that in January 2003 muscle strength was 5/5, there was decreased pinpoint sensation distal to the knees, and the deep tendon reflexes were equal and symmetric.  In physical therapy in February 2003, strength was 3+/5 and 3-/5 in the right and left lower extremity and there was some impairment in sensation with numbness and tingling as reported by the Veteran.  The deep tendon reflexes were equal and symmetric.  The assessment included bilateral lower extremity weakness, but the lower extremity weakness was not specifically attributable to the low back disability.  The neurological findings in April 2003 are similar to those of January 2003.  


In August 2003, left lower extremity strength was 4/5 and right lower extremity strength was 5/5.  There was also sensory impairment to pinpoint sensation distal to the lower extremity in a glove stocking pattern, and deep tendon reflexes were 1+ and symmetric.  In December 2003, motor testing showed 2+/5 in the left lower extremity and 5/5 in the right lower extremity.  Also, sensation was decreased in the left lower extremity.  

Further, the Veteran was noted to have pain and difficulty with walking in January 2002 and he was evaluated for a wheelchair, which he received soon thereafter.  The use of the wheelchair was not shown to be attributable solely to the low back disability, and in fact it appears that the condition of his knees was the main reason for the wheelchair.  As noted in May 2002, the Veteran had a history of knee pain and instability, causing him to fall.  In January 2003 and February 2003, it was noted that the Veteran used a wheelchair for long distances due to bilateral knee pain and instability.  In December 2003, it was noted that the Veteran was in a wheelchair due to bilateral knee pathology.  In June 2005, it was indicated that the Veteran used a wheelchair for prolonged distances due to cervical and lumbar spine surgery as well as his left knee problems.  

On VA examination in October 2005 VA examination, X-rays showed moderate degenerative disc disease throughout the lumbar spine, yet sensation was intact with decreased and patchy nondermatomal distribution.  Strength in the lower extremities was 4/5, and reflexes were 1+ at the patella bilaterally and 0 at the Achilles bilaterally.  

For a more complete neurological assessment that was aimed at identifying all neurological deficits and characterizing them as mild, moderate, moderately severe, or severe for the nerve affected, the Veteran underwent a VA examination in July 2007, at which time a history of numbness in the lower extremities was noted.  On the examination, there was decreased responsivity in the feet, although inconsistency was also noted.  



On motor testing, the muscles were symmetrical in bulk and tone, and there were no abnormal movements or fasciculations.  Strength testing in the right lower extremity was normal, while the left extremity displayed proximal collapsing weakness, most prominently of the quadriceps and dorsiflexion of the foot.  No pathological reflexes were noted, and there was no coordination defect.  The Veteran was able to stand from his wheelchair with little effort.  The Waddell rotation maneuver produced increased pain and collapsing of the left leg with turning of the body.  With minimal downward pressure on the shoulder girdles, both legs collapsed.  The Veteran himself was asked to place his hand on top of his head and push down, and with this maneuver his legs collapsed.  The examiner commented that subsequent to low back surgeries, the Veteran appeared to have a combination of pain distributions that were most likely musculoskeletal and non-radiculopathic.  He further stated that the Veteran displayed clearly evident behavioral factors of weakness, primarily in the left leg.  

The foregoing findings, particularly in the absence of severe recurring attacks with intermittent relief, do not show that the Veteran's lumbar spine disability more nearly approximates or equates to severe intervertebral disc syndrome to warrant a 40 percent rating under Diagnostic Code 5293, even considering pain on movement, pain on use, or pain during flare-ups.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  

This evidence similarly does not show that, for the period prior to January 27, 2003, the Veteran's lumbar spine disability more nearly approximates or equates to the 60 percent rating, which again requires evidence of pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disability, and little intermittent relief.  38 C.F.R. § 4.71a, Diagnostic Code 5293.





Specifically for this period, the lack of evidence of pronounced intervertebral disc syndrome precludes assigning a 60 percent rating.  Again, on the various VA examinations, objective manifestations of a severe disc syndrome were not shown.  Despite evidence of neuropathy and neurological findings (which are complicated by the Veteran's diabetes and his bilateral knee disabilities), the lack of evidence of pronounced intervertebral disc syndrome ultimately prevents assigning a 60 percent rating.  

Other applicable rating criteria effective prior to September 2002 consist of 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002), for evaluating lumbosacral strain.  Under Diagnostic Code 5295, the criteria for the next higher (and maximum) rating, 40 percent, are severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.    

For the period prior to January 27, 2003, the Board does not find that the Veteran meets the criteria of severe lumbosacral strain for a 40 percent rating under Code 5295.  As noted previously, the record shows that the lumbar spine was limited in motion, but not to the degree contemplated under Diagnostic Code 5295 for a 40 percent rating.  That is, there is no evidence of marked limitation of forward bending or of loss of lateral motion.  Also, there has been no objective evidence of listing of the whole spine to the opposite side or Goldthwait's sign.  He used a cane for balance at the time of the October 2000 VA examination, and in 2002 he obtained a wheelchair for reasons more attributable to knee disabilities than to the disability of the lumbar spine. 

Throughout the period of the appeal, the Veteran has had paravertebral muscular tenderness.  However, X-rays of the lumbar spine for the period considered in this appeal do not confirm degenerative joint changes.  



X-rays of the lumbar spine in April 2000 showed multi-level degenerative disc changes to include markedly narrowed space at L4-5.  It is not indicated whether the narrowed space pertains to the disc or the joint.  Under Code 5295, evidence showing severe strain with "narrowing or irregularity of joint space" would warrant a 40 percent rating. 

It appears that the narrowing would refer to disc space, as subsequent X-rays of the lumbar spine in October 2005 indicated mild kyphosis without acute bony pathology.  It is also noted that the Veteran underwent lumbar spine surgery in May 2000, which entailed partial bilateral facetectomies.  In any case, severe strain must be objectively demonstrated, in association with narrowing or irregularity of joint spaces, and this has not been shown.  

In light of the foregoing, the Board finds that the findings do not more nearly approximate or equate to severe low back strain to warrant a rating higher than 20 percent under Diagnostic Code 5295 for the period prior to January 27, 2003, even considering pain on movement, pain on use, or pain during flare-ups.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).    

In summary, the lumbar spine disability does not meet the criteria in effect prior to September 23, 2002, for a rating higher than 20 percent before January 27, 2003.    

Criteria effective on September 23, 2002

The criteria for evaluating limitation of motion of the lumbar spine and lumbosacral strain, as in effect prior to September 23, 2002, remained the same, despite other revisions to spine evaluation criteria that were made effective on September 23, 2002.  

Effective September 23, 2002, the criteria for evaluating intervertebral disc syndrome were revised.  



Under the revised criteria, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.  38 C.F.R. § 4.71a, Diagnostic Code 5293.  

Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating.  Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent rating.  Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrants a 60 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002).

The accompanying notes to Diagnostic Code 5293 provide 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.  "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.  

Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes.  Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnosis code or codes.  

In regard to peripheral nerve (sciatic nerve) injuries, a 10 percent rating requires mild incomplete paralysis.  A 20 percent rating requires moderate incomplete paralysis.  38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Codes 8520, 8620, 8720.  



For such other nerves as the external popliteal nerve (common peroneal), internal popliteal nerve (tibial), and anterior crural nerve (femoral), incomplete paralysis warrants a 10 percent rating when mild, 20 percent rating when moderate, and 30 percent rating when severe.  38 C.F.R. § 4.124a, Diagnostic Codes 8521, 8524, 8526.  The posterior tibial nerve is evaluated as 10 percent disabling for either mild or moderate incomplete paralysis, and as 20 percent disabling for severe incomplete paralysis.  38 C.F.R. § 4.124a, Diagnostic Code 8525.  

Moderate incomplete paralysis is required for a compensable (10 percent) rating for the musculocutaneous nerve (superficial peroneal) and anterior tibial nerve (deep peroneal).  38 C.F.R. § 4.124a, Diagnostic Codes 8522, 8523.  Severe to complete paralysis is required for a compensable (10 percent) rating for the internal saphenous nerve, obturator nerve, external cutaneous nerve of the thigh, and ilio-inguinal nerve.  38 C.F.R. § 4.124a, Diagnostic Codes 8527, 8528, 8529, 8530.  

The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.  

With respect to the rating criteria based on incapacitating episodes, VA and private medical records do not show that a physician has prescribed the Veteran bed rest for his lumbar spine, except during periods of convalescence from spinal surgery.  The Veteran did have a temporary total rating in May 1985 and in May 2000 for convalescence following surgeries.  Despite pain medication, the use of a TENS unit, the use of a cane, and a wheelchair, in part, due to disability of the lumbar spine, there is no objective evidence of bed rest prescribed by a physician to warrant a rating under Diagnostic Code 5293.  



The Board next addresses whether a higher rating under Diagnostic Code 5293 would result if chronic orthopedic and neurologic manifestations were separately evaluated.  As shown on VA examination and VA and private medical records, as described above, the orthopedic manifestations of the Veteran's thoracolumbar spine disability consist of moderate limitation of motion before January 27, 2003.  

Any pain localized to the lumbar spine has already been evaluated under chronic orthopedic manifestations, and to separately rate back pain as a neurologic manifestation would violate the rule against pyramiding.  38 C.F.R. § 4.14.  

As for neurological manifestations, on VA examinations in November 1999, in October 2000, and in October 2005 the diagnoses were lumbar spinal stenosis 
(L1-L4) with multiple decompressions and lumbar degenerative disc disease.  Also on VA examination in November 1999, the diagnosis was lumbar spinal stenosis at L3-4 and L4-5 with neurogenic claudication and left L5 radiculopathy.  However, the clinical findings relevant to neurologic impairment from the lumbar spine disability were not complete, so the Veteran underwent a VA neurological examination in July 2007 to verify the severity of the disability in light of the neurologic abnormalities.  That is, the VA examiner was asked to identify all neurological deficits and indicate whether such deficits were mild, moderate, moderately severe, or severe for the nerve affected.  The VA examiner concluded that there was no current evidence of radiculopathy at any level and no indication of spinal cord compression.  The diagnosis was musculoskeletal low back pain.  The VA examiner stated the Veteran had pseudo-neurological features and behavioral responses that were clearly defined in relation to left leg weakness, the collapsing effect at the knees, and the positive Waddell phenomenon.  The VA examiner found no primary neurological defects at any level. 

Objective neurological manifestations are not shown or at least not shown to a degree that would meet the criteria for a separate, compensable rating under the codes for evaluating neurologic disability.  The VA examiner in July 2007 had reviewed the file and noted the history of lumbar surgeries, weakness, use of a cane and wheelchair, and chronic pain.  


The VA examiner also noted the Veteran's history of numbness in the legs and feet as well as the knee and the Veteran's description of left-sided sensation.  The VA examiner in July 2007 considered these clinical findings along with the results of testing that were not previously done and concluded that there was no actual radiculopathy at any level of the low back.  

The assignment of a separate rating for neurologic manifestations resulting from the lumbar spine disc syndrome requires that the neurological signs and symptoms be present constantly, or nearly so.  The objective evidence, as described above, demonstrates that while neurologic complaints have been made throughout the appeal period that is considered in this decision, and "pseudo-neurological features" such as left leg weakness were identified, actual neurological manifestations attributable to the lumbar spine disability have not been demonstrated clinically and constantly for the period considered in this appeal.  In light of this, the Board finds that a separate rating for neurologic manifestations of the degenerative disc disease of the lumbar spine is not warranted.  

Accordingly, the assignment of a higher rating would not result under Diagnostic Code 5293 on the basis of combining chronic orthopedic manifestations (20 percent disabling before January 27, 2003, and 40 percent from January 27, 2003, to October 26, 2005) and neurologic manifestations (0 percent disabling).  

Extraschedular Consideration 

While the Board does not have authority to grant an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board does have the authority to decide whether a claim should be referred to the Director of VA's Compensation and Pension Service for consideration of an extraschedular rating.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate.  


This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

Comparing the Veteran's lumbar spine disability level and symptomatology before January 27, 2003, to the Rating Schedule, the degree of disability is encompassed by the Rating Schedule and the assigned schedular rating is, therefore, adequate and no referral for an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). 

A Total Disability Rating for Compensation based on Individual Unemployability 

The Veteran already has total disability rating for compensation based on individual unemployability. 

ORDER

A rating higher than 20 percent before January 27, 2003, for discogenic disease and arthritis of the lumbar spine with laminectomy, partial facetectomy, and neuroforaminotomy, L2-L4, is denied.  


REMAND

In July 2010, the Board remanded the claims of service connection for left and right knee disabilities for a new VA examination to consider whether the Veteran's claimed disabilities were directly related to his active service, secondary to his service-connected lumbar spine disability, or aggravated by his lumbar spine disability.  



The VA examination was conducted in October 2010.  The VA examiner rendered an opinion on direct service connection.  On the theories of secondary service connection and aggravation, the VA examiner was unable to give an opinion without resorting to speculation.  

As the rationale for the opinion is not clear, the opinion is inadequate. And further development under the duty to assist is needed. 

Accordingly, the case is REMANDED for the following actions:

1.  Afford the Veteran a VA orthopedic examination by a VA examiner, who has not previously examined the Veteran, to determine: 

Whether it is at least as likely as not that:

a).  The current left knee disability and the current right knee disability are due to an injury sustained during service from August 1966 to August 1969.  

The examiner is asked to consider that there is no service documentation of a right knee injury, that there is evidence of a left thigh injury and left-sided sciatica with a complaint of the left knee giving out in July 1968, and that the Veteran is competent to describe knee symptoms during and after his period of service.  








b).  In the alternative, the current left knee disability and the current right knee disability are caused by the service-connected lumbar spine disability or aggravated by the service-connected lumbar spine disability.  

In this context the term "aggravation" means a permanent increase in severity, that is, an irreversible or permanent worsening of the disabiities of the knee as a result of either service-connected disability of the lumbar spine or both, beyond the expected clinical course of the knee disabilities as contrasted to a temporary worsening of symptoms. 

If however after a review of the record, an opinion cannot be provided without resort to speculation, please clarify whether causation or aggravation cannot be determined because there are several potential etiologies unrelated to the service-connected disability, please identify the other potential etiologies, when the service-connected disability is not more likely than any other etiology to cause or to aggravate the knee disabilities and that an opinion on causation or aggravation is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge.

The Veteran's file must be made available to the VA examiner.





2.  After the requested development is completed, adjudicate the claims.  If any benefit is denied, then furnish the Veteran and his attorney a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs