Citation Nr: 1314574	
Decision Date: 05/02/13    Archive Date: 05/15/13

DOCKET NO.  09-18 429	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an increased disability evaluation for recurrent lumbosacral muscle strain, rated as 40 percent disabling. 

2.  Entitlement to a higher initial disability evaluation for right lower extremity radiculopathy, rated as 20 percent disabling.

3.  Entitlement to a higher initial disability evaluation for left lower extremity radiculopathy, rated as 10 percent disabling, prior to April 2, 2012, and 20 percent disabling, since April 2, 2012. 


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans Affairs



ATTORNEY FOR THE BOARD

M. Taylor, Counsel


INTRODUCTION

The Veteran had active service from March 1968 to March 1971. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2007 and May 2008 decisions of a Regional Office (RO) of Veterans Affairs (VA).

The March 2007 rating action assigned a 40 percent rating for the low back disability, effective June 26, 2006, and the Veteran filed a notice of disagreement with the rating.  The RO issued a May 2008 statement of the case on the matter and, while not on a formal Appeal to Board of Veterans' Appeals (VA Form 9), the Veteran perfected Board review of the assigned rating in a July 2008 statement.  See 38 U.S.C.A. § 7105(d)(3) (West 2002); 38 C.F.R. § 20.202 (2012).  Because the 40 percent rating does not represent the maximum benefit permitted under law, the issue remained in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).  

The May 2008 rating action granted a 20 percent rating for right lower extremity radiculopathy and a 10 percent rating for left lower extremity radiculopathy, effective June 26, 2006.  The Veteran perfected appellate review of the assigned ratings and, prior to Board certification, an October 2012 rating action assigned a 20 percent rating for left lower extremity radiculopathy, effective April 2, 2012. 

In January 2013, the Board remanded the matters for additional development, to include affording the Veteran opportunity for a VA examination with respect to the current degree of impairment due to his back disability and associated neurologic impairment.   He failed to report of the scheduled examination in March 2013.  Ordinarily, an increased rating claim is denied for a failure to report for a scheduled VA examination without good cause.  See 38 C.F.R. § 3.655 (2012).  In this case, however, and as noted in the remand, the prior VA examinations accomplished in December 2006, May 2008, September 2009, and April 2012 are adequate for a determination.  Thus, the Board will proceed with a determination.  


FINDINGS OF FACT

1.  The Veteran failed to appear at a scheduled March 2013 VA.  The evidence, to include the December 2006, September 2009, and April 2012 VA examination reports, is adequate for a determination.  

2.  The competent reliable evidence does not establish unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes that required physician prescribed bed rest.  

3.  The competent reliable evidence does not establish right lower extremity radiculopathy is manifested by more than moderate incomplete paralysis.  

4.  The competent reliable evidence does not establish left lower extremity radiculopathy is manifested by more than mild incomplete paralysis prior to April 2, 2012, or by more than moderate incomplete paralysis thereafter.  


CONCLUSIONS OF LAW

1.  The criteria for a disability evaluation higher than 40 percent for recurrent lumbosacral muscle strain have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5010-5242 (2012).  

2.  The criteria for a rating higher than 20 percent for right lower extremity radiculopathy have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6. 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2012).


3.  The criteria for a rating higher than 10 percent for left lower extremity radiculopathy, prior to April 2, 2012, and higher than 20 percent thereafter, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6. 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2012).

Veterans Claims Assistance Act of 2000

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 dated in September 2006 and September 2009 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).  These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  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 March 2013 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 and VA medical treatment records have been obtained; he did not identify any additional records pertinent to the appeal.  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 December 2006, September 2009 and April 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4).  The claims file was reviewed and/or the rationales provided for the opinions are based on objective findings and reliable principles.  

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, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Criteria

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Separate ratings may be assigned for separate periods of time based on the facts found, however.  This practice is known as "staged" ratings."  Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 3.321(a), 4.1. 

The general rating formula provides for the following disability ratings for diseases or injuries of the spine, 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.  It applies to Diagnostic Codes 5235 to 5243 unless the disability rated under Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  

Under the general rating formula for diseases and injuries of the spine, ratings are assigned as follows: 

1) 10 percent - 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; 

2) 20 percent - 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; 

3) 30 percent - Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; 

4) 40 percent - 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; 

5) 50 percent - Unfavorable ankylosis of the entire thoracolumbar spine; and 

6) 100 percent - Unfavorable ankylosis of the entire spine. 

Note (1): to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code. 

Note (2): (See also Plate V.)  For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  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 cervical spine is 340 degrees and 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. 

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2) provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 

Note (4): Round each range of motion measurement to the nearest five degrees. 

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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. 

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 

The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also Diagnostic Code 5003); 5243 Intervertebral disc syndrome. 

Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.  See 38 C.F.R. § 4.25 (combined ratings table). 

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months.  A 20 percent disability rating is awarded for disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order.  Finally, a maximum schedular rating of 60 percent is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

Incomplete or complete paralysis of the sciatic nerve is rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520.  Under this provision, mild incomplete paralysis warrants a 10 percent disability rating; moderate incomplete paralysis warrants a 20 percent disability rating; moderately severe incomplete paralysis warrants a 40 percent disability rating; and, severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating.  An 80 percent disability rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012).

The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor.  38 C.F.R. § 4.124a. 

If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  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 shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

Analysis

The Veteran is seeking increased disability evaluations for service-connected lumbosacral muscle strain and for the separate ratings assigned for associated right and left lower extremity radiculopathy.  

The Veteran is competent to report his symptoms.  Competence and credibility, however, are to be distinguished.  

Although the December 2006 VA examination report reflects forward flexion of the lumbar spine to 25 degrees, the examiner noted that in the seated position on the examination table the Veteran was able to sit with his hips flexed and his knees extended, inconsistent with range of motion in the erect position.  X-ray examination was noted to show only mild degenerative changes of the lumbar spine.  

No focal strength deficits were noted in the lower extremities, reflexes were intact, sensory was intact, and no radicular pain was noted.  

The May 2008 VA examination report notes the following:

Lumbar spine forward flexion:  The patient has guarding.  He reports that he cannot bend and cannot flex laterally or rotate.  His forward flexion, when asked to bend, is 0-10 degrees, but while examining in the seated position on the examining table, he was able to sit, and the lumbar spine forward flexion was up to 90 degrees and inconsistent with his range of motion in the erect position.  

No additional limitation of motion with repetitive use was noted.  No evidence of ankylosis was reported.  

Although noted to walk with a cane with short steps, no high-stepping gait with any right foot drop was reported and power was 4/5 in the lower extremities.  It was noted that he did not push against resistance.  Tone was normal and sensory was intact for pinprick and vibration.  Radicular symptoms were noted in both lower extremities, right greater than left.  

The examination report notes that he was independent with activities of daily living, able to drive short distances, and lived alone.  Although the Veteran stated he could walk no more than 15 to 20 feet without a back brace he stated he could walk one to two miles with a back brace.  

On VA examination in September 2009, suboptimal effort was noted.  Although the report of examination reflects forward flexion of the lumbar spine from 0 to 10 degrees and extension from 0 to five degrees, the examiner stated that the Veteran was able to sit on the examination table with legs outstretched at 90 degrees from the hip without complaint or concern.  The examiner noted that range of motion testing can be rendered inaccurate by suboptimal effort, as well as potent psychosocial overlays.  

The examiner stated that although the Veteran complained of extraordinary pain, he appeared very comfortable and spoke intelligently when a normal person with the same pain intensity would be screaming hysterically, and tossing and turning. Because the Veteran reported that back pain was constant and was adamant that there was never any change in his symptoms, no flare ups were noted.  

The Veteran's claim that his low back pain affected his upper extremities was noted to be impossible.  Although strength test to gravity and resistance in the upper extremities was noted to be 3/5 and grip strength was 3/5, suboptimal effort was noted.  

The Veteran's complaints of severe numbness and weakness of the lower extremities were noted, along with his report that he could only walk a maximum distance of 20 feet without resting, and that he feels as if his lower extremities are paralyzed.  The Veteran reported that the location of the pain and/or numbness encompassed the entire buttocks, the anterior pelvis area and the entire legs, bilaterally, to include the feet.  The examiner stated that this was obviously not a normal dermatome pathway, as it would include T10 distally.  

Deep tendon reflexes were bilaterally equal and no muscle atrophy, hypertrophy, or loss of muscle tone was noted.  The report reflects the Veteran walked on heels and toes and heel-to-toe without difficulty.  

Although the Veteran stated he was wearing a right leg brace for foot drop, and that the right knee gave way, the examiner noted that the brace was fitted from a position below the knee to the heel of the shoe, which would not give support to the right knee.  The examiner determined there was no foot drop, and sensation to pinprick and light touch was noted to diminish from C4 distally without change to include the feet.  

The impression of x-ray examination was mild diffuse degenerative disc disease.  No change was noted.  The examiner concluded that the Veteran's subjective complaints were inconsistent with the documented objective evidence.  

The April 2012 VA examination report reflects the Veteran's report of having been wheelchair bound for the previous five years, and it was noted that because he claimed he could not walk at all, he could not be evaluated with respect to ambulation.  The examiner added that the Veteran was able to transfer from the chair to the examination table using the support of a single pronged cane; was able to remove his shoes and socks on his own while sitting and complaining of back pain; was able to stand up without support for removal of and putting on his pants; and was able to remove his shirt without any difficulty  The diagnosis was moderate bilateral sensory deficits.  

At no time during the appeal does the evidence establish unfavorable ankylosis of the entire thoracolumbar spine.  All of the examination reports note no incapacitating episodes that required physician prescribed bed rest.  Thus, a higher rating for the lumbar spine disability is not warranted under any applicable diagnostic code at any time during the appeal.  

The competent, reliable evidence does not establish that higher evaluations are warranted at any time during the appeal period for neurologic impairment of the right and left lower extremities.  The 10 percent evaluation assigned for left lower extremity radiculopathy, prior to April 2, 2012, contemplates mild incomplete paralysis, and the 20 percent evaluations assigned for right lower and left lower extremity radiculopathy contemplate moderate incomplete paralysis.  Although the Veteran is competent to report his symptoms, such as paralysis and foot drop, his report is inconsistent with the objective findings and opinions and of diminished probative value.  

Although not free to ignore the Veteran's report as to any matter upon which he is competent to offer an opinion, the Board may properly consider the personal interest a claimant has in his case and is of course cognizant of possible self interest which any Veteran has in promoting a claim for monetary benefits.  See Pond v. West, 12 Vet. App. 341, 345 (1999).  There is no doubt that the Veteran is competent to relate his symptoms.  It is his credibility, however, the Board finds to be lacking.  Here, there is a huge disparity between the symptoms the Veteran reports and the objective clinical findings by medical professional.  The Board finds the examiners' impressions are far more probative.  

To the extent that the Veteran has asserted that his symptoms are worse than when last examined, he failed to report for the scheduled VA examination in March 2013.  When entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied.  38 C.F.R. § 3.655(a), (b).  

To the extent that interference with employment has been asserted, the 40 percent evaluation for lumbosacral muscle strain, and the 10 and 20 percent evaluations assigned for associated neurologic impairment in the lower extremities during the relevant period, contemplate the degree of impairment in earning capacity, including loss of time from exacerbations due to service-connected lumbar spine strain and right and left lower extremity neurologic impairment, if any.  38 C.F.R. § 4.1 (2012). 

The preponderance of the evidence is against the claims and there is no doubt to be resolved.  Higher ratings are not warranted.  

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's lumbosacral and associated lower extremity symptoms.  They are adequate to evaluate the disabilities; referral for consideration of an extraschedular rating is not warranted.














ORDER

A disability evaluation higher than 40 percent for lumbosacral muscle strain is denied.  

A disability evaluation higher than 20 percent for right lower extremity radiculopathy is denied.  

A disability evaluation higher than 10 percent for left lower extremity radiculopathy, prior to April 2, 2012, and higher than 20 percent thereafter is denied.  






____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs