Citation Nr: 1314702	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  05-02 420	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for carpal tunnel syndrome of the right wrist. 

2.  Entitlement to service connection for carpal tunnel syndrome of the left wrist. 

3.  Entitlement to an initial disability evaluation higher than 10 percent for low back strain, prior to July 5, 2005.  

4.  Entitlement to a disability evaluation higher than 20 percent for low back strain with degenerative joint disease at L2-3 and L4-5, for the period from July 5, 2005 to June 7, 2011.  

5.   Entitlement to a disability evaluation higher than 40 percent for low back strain with degenerative joint disease at L2-3 and L4-5, since June 7, 2011.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Taylor, Counsel 


INTRODUCTION

The Veteran had active service from September 1978 until August 2001. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2003 and December 2003 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

In April 2008, a Travel Board hearing was held before a Veterans Law Judge, and because the Veterans Law Judge is no longer employed at the Board, the Veteran was informed he was entitled to another Board hearing.  In February 2013, the Veteran indicated he did not desire to appear at another hearing.  Thus, the Board will proceed with consideration of the case.  A transcript of April 2008 hearing is of record. 

In November 2009 and May 2011, the Board remanded the case for further development.  

In a June 2012 rating decision, the evaluation for the service-connected low back strain with degenerative joint disease was increased to 40 percent, from June 7, 2011.  Since the increase does not constitute a full grant of the benefits sought, the increased rating issue remains in appellate status.  AB v. Brown, 6 Vet. App. 35 (1993).  

The June 2011 VA examination report notes the Veteran was employed on a full-time basis.  The issue of a total disability rating based on individual unemployability has not been raised.  

The issue of entitlement to an increased evaluation for the service-connected low back disability, since June 7, 2011, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Service connection was granted for right carpal tunnel syndrome in a July 2012 rating decision.  

2.  Service connection was granted for left carpal tunnel syndrome in a July 2012 rating decision.  

3.  Prior to July 5, 2005, the Veteran's low back strain is not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees; there is no abnormal gait or spinal contour; and there are no incapacitating episodes.  The low back strain does not more nearly approximate to moderate limitation of the lumbar spine or moderate intervertebral disc syndrome with recurring attacks, and is not manifested by lumbosacral strain with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position.  

4.  For the period from July 5, 2005 to June 7, 2011, low back strain with degenerative joint disease is not manifested by  listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the 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; it is not severe, characterized by recurring attacks with intermittent relief; and does not result in the actual, or functional equivalent, of severe limitation of motion.  Forward flexion of the thoracolumbar spine is not 30 degrees or less; and there are no incapacitating episodes due to the low back disability were noted.  


CONCLUSIONS OF LAW

1.  There is no question of law or fact involving the claim of entitlement to service connection for right carpal tunnel syndrome; the appeal is moot.  38 U.S.C.A. § 7105(d)(5) (West 2002). 

2.  There is no question of law or fact involving the claim of entitlement to service connection for left carpal tunnel syndrome; the appeal is moot.  38 U.S.C.A. § 7105(d)(5) (West 2002). 

3.  Prior to July 5, 2005, the criteria for an initial disability evaluation higher than 10 percent have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.40, 4.45, 4.71a, 4.124a; Diagnostic Codes 5292, 5293, 5295 (2002, 2003), 5235-5243 (2012).

4.  For the period from July 5, 2005 to June 7, 2011, the criteria for a disability evaluation higher than 20 percent have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.40, 4.45, 4.71a, 4.124a; Diagnostic Codes 5292, 5293, 5295 (2002, 2003), 5235-5243 (2012).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Veteran's increased rating claim arises from his disagreement with the initial evaluation that was assigned following the grant of service connection.  In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven.  As a result, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Even if there has been an error in VCAA notice, it should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  Neither the Veteran nor his representative has alleged any prejudicial or harmful error in VCAA notice, and the Board perceives none, particularly in view of Dingess, supra.

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).  The Veteran's VA and private medical treatment reports have been associated with the claims file.  The Veteran was afforded VA medical examinations in December 2002, November 2003July 2005, March 2006, November 2007, and December 2009.  A medical opinion is adequate when it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). 

These VA examinations were conducted by medical professionals, and the associated reports reflect review of the Veteran's prior medical history.  The examinations included a report of the respective symptoms for low back disability and demonstrated objective evaluations.  The examiners were able to assess and record the status of the Veteran's back.  

The examination reports are sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings.  It is not shown that the examinations were incorrectly conducted.  It is not shown that any VA examiner failed to address the clinical significance of the Veteran's back disability.  The Board concludes that the appellant was afforded adequate examinations.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Veteran was informed about the kind of evidence that was required and the kinds of assistance that VA would provide and he was supplied with the text of 38 C.F.R. § 3.159.  The appellant did not provide any information to VA concerning available relevant treatment records that he wanted the RO to obtain for him that were not obtained.  The Board finds VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim.  

Although the Veterans Law Judge who conducted the hearing is no longer employed at the Board, the Veteran indicated he did not desire to appear at another hearing.  

II.  Dismissal

In January 2005, the Veteran perfected an appeal of the December 2003 rating decision in which service connection was denied for right carpal tunnel syndrome and left carpal tunnel syndrome.  In a July 2012 rating decision, service connection was granted for right carpal tunnel syndrome and left carpal tunnel syndrome.  There remains no case or controversy regarding these issues; the benefits sought on appeal were granted in full.  38 U.S.C.A. § 7105 (West 2002); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  

III.  Higher Evaluation

Criteria

Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002).  Evaluations of a service-connected disability require review of the entire medical history regarding the disability.  38 C.F.R. §§ 4.1, 4.2.  If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  

Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011). 

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 v. Derwinski, 1 Vet. App. 589, 594 (1991).  In cases in which the Veteran has appealed the initial rating assigned at the time service connection is established, in assigning the initial rating, the Board must consider the propriety of assigning one or more levels of rating-"staged" ratings-from the initial effective date forward, based on evidence as to the severity of disability.  See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007) (Even in a claim for an increase in the level of an already service-connected disability, 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.). 

During the pendency of the Veteran's appeal, VA promulgated new regulations for the evaluation of intervertebral disc syndrome, 38 C.F.R. § 4.71a, Diagnostic Code 5293, effective September 23, 2002.  See 67 Fed. Reg. 54,345 (Aug. 22, 2002) (codified at 38 C.F.R. pt. 4).  Later, VA promulgated new regulations for the evaluation of the remaining disabilities of the spine, effective September 26, 2003.  See 68 Fed. Reg. 51,454 (Aug. 27, 2003) (codified at 38 C.F.R. pt. 4).  The amendments renumber the diagnostic codes and create a general rating formula for rating diseases and injuries of the spine, based largely on limitation or loss of motion, as well as other symptoms. 

When amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded.  38 U.S.C.A. § 5110(g); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000.  Therefore, as each set of amendments discussed above has a specified effective date without provision for retroactive application, neither set of amendments may be applied prior to its effective date.  As of those effective dates, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 

The previous version of the rating criteria provided as follows: 

Under Diagnostic Code 5292, limitation of motion of the lumbar spine is assigned a 10 percent rating for slight limitation of motion, a 20 percent rating is assigned for moderate limitation of motion, and a maximum schedular rating of 40 percent is assigned for severe limitation of motion. 

Under Diagnostic Code 5293, when disability from intervertebral disc syndrome is mild, a 10 percent rating is assigned.  When disability is moderate, with recurring attacks, a 20 percent evaluation is warranted.  A 40 percent rating is in order when disability is severe, characterized by recurring attacks with intermittent relief.  A maximum schedular rating of 60 percent is awarded when disability from intervertebral disc syndrome is pronounced, 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 disc, with little intermittent relief. 

Under Diagnostic Code 5295, a 10 percent rating is assigned for lumbosacral strain with characteristic pain on motion.  If there is lumbosacral strain with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position, a 20 percent evaluation is in order.  A maximum schedular rating of 40 percent is awarded when lumbosacral strain is severe, with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the 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. 


The amended version of the rating criteria provides as follows: 

Lumbosacral or cervical strain is Diagnostic Code 5237.  Intervertebral disc syndrome is Diagnostic Code 5243. 

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 is 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.  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. 

Analysis

This matter stems from the appeal of an initial 10 percent evaluation assigned for low back strain following a grant of service connection, effective September 1, 2001, in a February 2003 rating decision.  During the appeal, staged ratings were assigned.  A 20 percent rating was assigned for the period from July 5, 2005 to June 7, 2011.  The Veteran asserts higher ratings are warranted during the relevant periods.

Prior to July 5, 2005

The initial 10 percent evaluation for low back strain was assigned under the old criteria of Diagnostic Code 5295.  The next higher 20 percent rating under Diagnostic Code 5295 requires lumbosacral strain with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position.  

The December 2002 VA examination report reflects thoracolumbar lateral flexion to 35 degrees on each the right and left.  The November 2003 VA examination report shows right and left lateral flexion of the thoracolumbar spine to 30 degrees.  Although the impression of x-ray examination of the lumbar spine notes straightening of the spine could be due to position or spasm, no objective paraspinal spasm was reported.  Even though VA treatment records dated in March 2005 reflect complaints of significant lower back and hip pain, the objective finding reported was mild tenderness in the left paralumbar area of the back.  A higher evaluation is not warranted under Diagnostic Code 5295.  

The Board further finds that a higher rating under other potentially applicable diagnostic codes is not warranted.  The evidence does not establish that the Veteran's low back disability more nearly approximates moderate limitation of the lumbar spine or moderate intervertebral disc syndrome with recurring attacks.  

The December 2002 VA examination report reflects flexion of the thoracolumbar spine to 90 degrees and extension to 30 degrees.  The November 2003 VA examination report shows flexion to 80 degrees and extension to 20 degrees.  Vertebrae were noted to be midline and nontender on palpation.  The assessment was old lumbosacral strain, and degenerative changes shown on x-ray examination of the lumbar spine were noted to be mild.  

The Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40, 4.45 would warrant a higher rating.  It is not disputed that the Veteran has pain on motion, but the Board finds the 10 percent disability rating assigned prior to July 5, 2005, adequately compensates him for his pain and functional loss.  

A May 2002 private report notes gait and station were normal.  The December 2002 VA examiner determined there was no loss of function or mobility, and no use of an assistive device was noted.  No pain on motion and no additional limitation of motion due to fatigue, weakness or lack of endurance following repetitive movement were reported.  

The November 2003 VA examination report notes no postural abnormalities, no ankylosis, and no abnormality of musculature of the back.  The examiner determined that the effects of the spine disability did not preclude activities of daily living, his occupation, or recreational activities.  A June 2003 VA treatment record notes he walked occasionally and was active in the yard.  

To the extent interference with employment has been asserted, the 10 percent evaluation assigned prior to July 5, 2005, contemplates impairment in earning capacity, including loss of time from exacerbations due to the low back disability, if any.  38 C.F.R. § 4.1. 

A rating higher than 10 percent is not warranted under the revised criteria at any time during the relevant period, prior to July 5, 2005.  The evidence establishes that forward flexion of the thoracolumbar spine is not greater than 30 degrees but not greater than 60 degrees.  Rather, the November 2003 VA examination report specifically notes forward flexion to 80 degrees.  Extension was to 20 degrees.  Lateral flexion was to 30 degrees on the both the right and left.  Lateral rotation was to 30 degrees on the right and left.  The combined range of motion of the thoracolumbar spine is greater than 120 degrees.  The evidence does not establish an abnormal gait or spinal contour.  No incapacitating episodes were noted.  

From July 5, 2005 to June 7, 2011

A 20 percent evaluation was assigned for low back strain with degenerative joint disease at L2-3 and L4-5 from July 5, 2005 to June 7, 2011.  

The July 2005 VA examination report shows forward flexion of the thoracolumbar spine was to 60 degrees and extension was to 20 degrees.  Right and left lateral flexion were each to 20 degrees.  Although stiffness at the end of flexion was noted, the examiner determined that range of motion was not additionally limited by pain, stiffness or lack of endurance following repetitive use.  

The spine, limbs, posture and gait, and position of the head were all reported to be normal.  Symmetry in appearance and rhythm of spinal motion was noted.  No paraspinal spasm was reported.  

The March 2006 VA examination report reflects the spine was symmetrical and posture and gait were normal.  Forward flexion of the thoracolumbar spine was to 90 degrees and extension was to 30 degrees.  Left and right lateral flexion were each to 30 degrees.  No associated pain or additional limitation with repetitive use was noted.  No incapacitating episodes due to the back disability were reported.  

The November 2007 VA examination report reflects forward flexion to 90 degrees and extension to 20 degrees.  Right and left lateral flexion were each to 30 degrees and right and left lateral rotation were each to 45 degrees.  Although mild discomfort on extension and lateral flexion of the lower back was noted, the examiner reported no additional limitation of motion by pain, fatigue, weakness, loss of coordination of lack of endurance following repetitive movement.  No additional limitations of mobility or function were specifically noted.  

The December 2009 VA examination report reflects forward flexion of the thoracolumbar spine to 90 degrees and extension to 30 degrees.  Lateral flexion was to 30 degrees on the right and left.  No objective evidence of painful motion, spasm, weakness, tenderness, atrophy or guarding was noted.  No additional limitations were noted with three repetitions of movement due to pain fatigue, incoordination weakness, or lack of endurance.  No postural abnormalities, fixed deformity or abnormality of musculature of the back was noted.  No ankylosis was reported Both the December 2009 and November 2003 reports of examination note no ankylosis and no incapacitating episodes.  

The objective evidence establishes that Veteran does not have listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the 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.  His back disability is not severe; is not characterized by recurring attacks with intermittent relief; and does not result in the actual, or functional equivalent, of severe limitation of motion.  

A rating higher than 20 percent is not warranted under the revised criteria at any time during the period from July 5, 2005 to June 7, 2011.  The evidence establishes that forward flexion of the thoracolumbar spine is not 30 degrees or less.  Rather, the November 2003 VA examination report specifically notes forward flexion to 80 degrees.  No incapacitating episodes were noted.  There is no objective evidence that bed rest has been prescribed by a physician for the service-connected low back disability.  

It is not disputed that the Veteran has pain on motion, but the Board finds that the 20 percent disability rating assigned during the relevant period adequately compensates him for his pain and functional loss due to low back strain with degenerative joint disease.  

To the extent that interference with employment due to the low back disability has been asserted, the record reflects the Veteran was employed, and the VA examiners noted that the back disability did not interfere with employment.  The December 2009 VA examiner noted the Veteran's report that back pain was not significant enough to call in sick to work, and that he had taken no sick leave in the previous 12 months.  Regardless, the 20 percent evaluation assigned for the period from July 5, 2005 to June 7, 2011contemplates impairment in earning capacity, including loss of time from exacerbations due to the low back disability, if any.  38 C.F.R. § 4.1.  

With respect to neurologic impairment in the lower extremities, the Board notes that regardless of the changes in the rating schedule, rating limitation of motion as distinct from neurologic impairment in the lower extremities was never prohibited.  What would be prohibited, however, would be rating the lumbar spine disability under the criteria for intervertebral disc syndrome and separately evaluating neurologic impairment, as Diagnostic Code 5293 clearly contemplates neurologic impairment.  Regardless, a separate evaluation for neurologic abnormalities is not warranted at any time prior to June 7, 2011.  

A June 2002 private report reflects muscle strength in the lower extremities was 5/5.  Gait and station were both noted to be normal.  

Although a history consistent with previous sciatica or L5-S1 compression was noted on VA examination in December 2002, the examiner reported that there was no evidence of nerve involvement, impairment of motor or sensory function or fine motor control.  No evidence of paralysis, neuritis, neuralgia, muscle wasting or atrophy was reported.  

Although private records dated in March 2003 reflect an assessment of S1 lumbar radiculopathy, results of clinical testing are not associated with the opinion.  Bloom v. West, 12 Vet. App. 185, 187 (1999).  The Board finds the opinion to be of limited probative value.  The November 2003 VA examination report reflects straight leg raising was negative, and neurologic examination was reported be normal at that time, as well as in March 2005.  

The July 2005 VA examination report reflects a normal sensory and motor examination, and normal power, bulk, tone, and symmetry of the muscle groups of the lower extremities.  Reflexes were intact and equal at the knees and ankles.  Straight leg raise was negative to 90 degrees, bilaterally.  No intervertebral disc syndrome was reported.  

Although a December 2005 physical therapy record reflects the Veteran's complaints of tingling down the left lower extremity and likely old radiculopathy was noted.   Lasegue's sign was negative and negative quadrant testing was reported.  

The March 2006 VA examination report reflects sensory was intact, bilaterally.  No muscular atrophy was noted.  Deep tendon reflexes were equal, and intact volitional control was noted.  Lasegue's sign was negative.  No incapacitating episodes were reported and no physician prescribed bed rest was noted.  

The November 2007 VA examination report reflects gait, posture, and balance were normal.  Deep tendon reflexes were 2+/4 and symmetrical.  Robmerg's test was normal.  Vibratory, proprioception and tactile sensations remained intact.  No evidence of sensory or motor impairment was reported  

The December 2009 VA examination report notes that although the Veteran complained of pain radiating into the left leg, there was no evidence of radiculopathy.  

The Board finds that a separate evaluation for neurologic abnormalities is not warranted. 

In determining that a rating in excess of 20 percent is not warranted at any time during the appeal, the Board has accorded greater probative value to the competent medical opinions in regard to the degree of impairment due to cervical spine degenerative disc disease.  The examiners reviewed the claims file and provided detailed reports based on objective findings and reliable principles, and the opinions are supported by treatment records. 

The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In this case, the Board finds no other provision upon which to assign a rating higher than 20 percent. 

In reaching a determination, the Board has considered the Veteran's competent report of his symptoms.  The Board has accorded more probative value to the VA examination reports.  The opinions provided are based on objective findings and reliable principles, and are consistent with VA treatment records.  Ratings higher than those assigned during the relevant periods are not warranted for the service connected back disability prior to June 7, 2011.  

Extraschedular Consideration

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 low back disability.  They are adequate to evaluate the disability and his symptoms; referral for consideration of an extraschedular rating is not warranted.




ORDER

The appeal with respect to service connection for right carpal tunnel syndrome is dismissed.  

The appeal with respect to service connection for left carpal tunnel syndrome is dismissed.  

An initial disability evaluation higher than 10 percent for low back strain, prior to July 5, 2005, is denied.  

A disability evaluation higher than 20 percent for low back strain with degenerative joint disease at L2-3 and L4-5, for the period from July 5, 2005 to June 7, 2011, is denied.  


REMAND

The Veteran asserts that his service-connected low back disability is worse than when last examined in June 2011.  Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  The Veteran is to be scheduled for a VA examination for current findings with respect to the service-connected low back disability.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA back examination by an appropriate medical professional to determine the nature, extent, and severity of the Veteran's service-connected back disability.  The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.


All indicated studies, including range of motion studies in degrees, must be performed.  Any specific functional impairment due to pain is to be identified.  Objective findings relative to neurologic impairment evident from the Veteran's back disability are to be reported.  All associated symptoms are to be reported.  

The examination report must include a complete rationale for all opinions expressed.  If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

2.  Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated.  Then readjudicate the claim on appeal.  If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond.  The case is to then be returned to the Board for further appellate review.

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

This claim 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).



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



Department of Veterans Affairs