Citation Nr: 1315219 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 07-01 138 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for the service-connected degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbosacral spine prior to May 12, 2011. 2. Entitlement to an initial evaluation in excess of 10 percent for the service-connected left lower extremity radiculopathy prior to May 12, 2011. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from February 1954 to May 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2005 decision of the RO. In November 2010, the Board remanded the appeal to the RO for additional development of the record. In April 2012, the Board granted an increased evaluation of 40 percent for lumbosacral spine disability for the period of the appeal prior to April 25, 2007 and a 50 percent evaluation beginning on May 12, 2011; assigned a separate 10 percent evaluation for the period of the appeal prior to May 12, 2011 for left lower radiculopathy and a 40 percent rating beginning on May 12, 2011; and assigned a separate 40 percent rating for right lower extremity radiculopathy beginning on May 12, 2011. The matters of higher ratings than those assigned for the lumbosacral spine disability and bilateral lower extremity radiculopathy were remanded for consideration of additional evidence. In January 2013, the Board denied entitlement to an evaluation greater than 50 percent for lumbosacral spine disability for the period beginning on May 12, 2011; denied entitlement to an initial evaluation in excess of 40 percent for left lower extremity radiculopathy for the period beginning on May 12, 2011; and denied entitlement to an initial evaluation in excess of 40 percent for right lower extremity radiculopathy beginning on May 12, 2011. The issues of an evaluation in excess of 40 percent for the service-connected lumbosacral spine disability prior to May 12, 2011 and an initial evaluation in excess of 10 percent for the service-connected left lower extremity radiculopathy prior to May 12, 2011 were remanded for readjudication. There was sufficient compliance with the remand directive and the case has since returned to the Board. The only issues remaining for consideration are those set forth in "The Issues" section above. The Virtual VA eFolder has been reviewed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. For the period of the appeal prior to May 12, 2011, the service-connected lumbosacral spine DJD and DDD was not shown to have been manifested by unfavorable ankylosis of the entire thoracolumbar spine; nor were incapacitating episodes as defined by regulation demonstrated. 2. For the period of the appeal prior to May 12, 2011, the service-connected left lower extremity radiculopathy was not shown to have been manifested by more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the period of the appeal prior to May 12, 2011, the criteria for the assignment of an evaluation in excess of 40 percent for the service-connected lumbosacral spine DJD and DDD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5235-5243 (2012). 2. For the period of the appeal prior to May 12, 2011, the criteria for the assignment of an evaluation in excess of 10 percent for the service-connected left lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.124a including Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. With regard to the pending claim for a higher evaluation prior to May 12, 2011 for the left lower extremity radiculopathy, the issue has been phrased as an initial disability evaluation. As service connection, an initial rating, and an effective date have been assigned, the requirements of 38 U.S.C.A. § 5103(a) have been met. See Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). By correspondence dated in August 2004 and May 2005, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. A review of Virtual VA shows that in March 2006, VA provided information regarding the assignment of disability ratings and effective dates. In May 2008, VA provided additional information regarding how VA determines disability ratings and also provided applicable rating criteria. The issues were most recently readjudicated in the March 2013 Supplemental Statement of the Case. VA has also satisfied its duty to assist. The claims folder contains service treatment and personnel records, VA medical center records, and identified private medical records. As noted, this decision addresses that portion of the appeal period prior to May 12, 2011. A review of the claims folder shows that the Veteran was provided several VA examinations during this period, to include in December 2004, September 2005, and April 2007. These examinations contain findings necessary for evaluation and are adequate for rating purposes. On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis The Veteran contends that the evaluations assigned for his lumbosacral spine disability and associated left lower extremity radiculopathy prior to May 12, 2011 do not adequately reflect the severity of his disabilities. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, 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. VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. When 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 concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. DJD and DDD of the lumbosacral spine prior to May 12, 2011 By way of history, in August 1982, the RO granted service connection for degenerative changes of the cervical and lumbosacral areas of the spine and assigned a combined 20 percent evaluation beginning on June 1, 1982. In August 2004, the Veteran submitted a claim for increase. In February 2005, the RO assigned separate 10 percent evaluations each for the lumbar and cervical segments of the spine from August 11, 2004. In November 2005, the RO in pertinent part, continued the 10 percent evaluation for lumbosacral spine disability. The Veteran disagreed with the decision and subsequently perfected this appeal. In December 2007, the RO increased the evaluation for lumbosacral spine disability to 40 percent beginning on April 25, 2007. In April 2012, the Board granted a 40 percent evaluation for the lumbosacral spine disability for the period prior to April 25, 2007, and a 50 percent evaluation beginning on May 12, 2011. In April 2012, the RO implemented the Board's decision and assigned the 40 percent evaluation beginning on August 11, 2004, and the 50 percent evaluation beginning on May 12, 2011. The Veteran did not disagree with the assigned effective date for the 40 percent evaluation. As set forth, the Veteran's lumbosacral spine disability has been evaluated as 40 percent disabling for that portion of the appeal period prior to May 12, 2011 (i.e., from August 11, 2004). This evaluation was assigned under the General Rating Formula for Disease and Injuries of the Spine (General Formula), which applies to Diagnostic Codes 5235 to 5243. 38 C.F.R. § 4.71a. Intervertebral disc syndrome (IVDS) may be rated alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Incapacitating Episodes). 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Formula, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected, a 40 percent rating is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or, where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. Note (5) following the General Formula provides that for VA compensation purposes, unfavorable ankylosis is shown when 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; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. On VA spine examination in December 2004, range of motion of the lumbar spine was as follows: forward flexion to 90 degrees, backward extension to 15 degrees, lateral flexion to 20 degrees, bilaterally, and rotation to 20 degrees, bilaterally. The Veteran had pain with all movements and stopped when the pain started. There was no fatigue, weakness or lack of endurance. Repetitive motion did not increase the range of motion loss. There was no spasm, weakness or tenderness. On VA general medical examination in September 2005, the Veteran reported having significant low back pain, which was aggravated by any kind of walking, standing or sitting. Examination of the lumbosacral spine revealed that forward flexion was performed to 80 degrees, backward extension performed to 20 degrees, lateral flexion performed to 20 degrees, bilaterally, and rotation performed to 35 degrees, bilaterally. Pain was present only at the maximum range of motion and repetitive motion caused no change in the appearance of pain or limitation of motion. On VA spine examination in April 2007, the Veteran's range of motion was as follows: forward flexion was from 0 to 15 degrees with pain beginning at 10 degrees; extension was from 0 to 10 degrees with pain beginning at 5 degrees; lateral flexion was from 0 to 25 degrees, bilaterally; and lateral rotation was from 0 to 30 degrees on the right and from 0 to 25 degrees on the left. There was no additional loss of motion on repetitive use. The examiner specifically stated that there was no thoracolumbar spine ankylosis. The Board has reviewed relevant evidence of record for the period prior to May 12, 2011, to include VA examinations and VA and private medical records. Such evidence does not show unfavorable ankylosis of the entire thoracolumbar spine. As set forth, the Veteran demonstrated a range of motion throughout the entire thoracolumbar spine. The Board has considered the Veteran's complaints regarding significant back pain and limitations. Objective findings, however, do not support a higher evaluation based on functional impairment due to pain on motion or other factors and the Veteran's disability picture prior to May 12, 2011 was not shown to have been productive of unfavorable ankylosis of the entire thoracolumbar spine. See DeLuca. Pursuant to Diagnostic Code 5243, the evaluation of IVDS is either under the General Formula or under the Formula for Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Accordingly, the Board has considered whether the Veteran is entitled to a higher evaluation under the Formula for Incapacitating Episodes, which provides for a 60 percent rating when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. For the purposes of evaluation under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See Formula for Incapacitating Episodes at Note (1). On review, the record does not show that, at any point during the period prior to May 12, 2011, that the Veteran experienced qualifying incapacitating episodes of IVDS. For example, the April 2007 VA examination stated that there were no episodes of incapacitation. The private medical records do not document incapacitating episodes as defined by regulation. The Board has considered the Veteran's lay statements regarding the severity of his lumbosacral spine disability. While the Board finds that the Veteran is competent to report his symptoms and credible, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disabilities on appeal. In summary, for the period of the appeal prior to May 12, 2011, the criteria for an evaluation greater than 40 percent for service-connected lumbosacral spine DJD and DDD are not met or more nearly approximated. Staged ratings are not warranted during the period in question. See Hart. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. Left lower extremity radiculopathy prior to May 12, 2011 Note (1) of the General Formula provides that any associated neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. In April 2012, the Board assigned a separate 10 percent evaluation for the service-connected back disability based on left lower extremity radiculopathy for the period of the appeal prior to May 12, 2011; and a 40 percent evaluation beginning on May 12, 2011. In April 2012, the RO implemented this decision and, in pertinent part, assigned the 10 percent evaluation for left lower extremity radiculopathy beginning on August 11, 2004. The Veteran did not disagree with the assigned effective date for the 10 percent evaluation. As noted, the Veteran's left lower extremity radiculopathy has been evaluated as 10 percent disabling for that portion of the appeal period prior to May 12, 2011 (i.e., from August 11, 2004). The Veteran's left lower extremity radiculopathy is currently evaluated under the rating criteria addressing impairment of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis of the sciatic nerve which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscle atrophy. The term "incomplete paralysis" with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture 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. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. On VA examination in December 2004, there was no atrophy or spasm. Deep tendon reflexes were equal, bilaterally, and straight leg raising was negative. No sensory loss was found on examination. On VA general medical examination in September 2005, the Veteran reported having low back pain with radiation down the left leg. He required no assistive devices, and ambulation was reported as normal. Neurological abnormalities were absent except for a slight decrease in pinprick sensation over the left lateral thigh. The records from a private pain center dated in 2005 and 2006 document the Veteran's complaints of low back pain radiating down the left leg with numbness in the left thigh, left lower leg and foot. His gait was occasionally affected by a left leg limp, but muscle tone and muscle strength were grossly normal. The Veteran underwent epidural steroid injections for radiculopathy. On VA spine examination in April 2007, the Veteran reported having radiating pain down both legs posteriorly, left worse than right with burning of the feet. On examination, his gait type was normal. Motor strength and muscle tone were normal. There was no evidence of muscle atrophy. There was no abnormal sensation of the left lower extremity. His reflexes were 2+ at the knee and ankle, and plantar flexion was normal. On review, the objective findings appear consistent with no more than mild incomplete paralysis of the sciatic nerve. In making this determination, the Board acknowledges the evidence of slight decrease in pinprick sensation over the left lateral thigh and private records documenting a limp on the left side. However, the Veteran's muscle strength, muscle tone, and reflexes were largely reported as normal during the period in question. The Board has considered the Veteran's lay statements regarding the severity of his left lower extremity radiculopathy. While the Board finds the Veteran is competent to report his symptoms and credible, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. In summary, the criteria for an evaluation greater than 10 percent for left lower extremity radiculopathy are not met for the period prior to May 12, 2011. A staged rating is not warranted during the period in question. See Fenderson. The preponderance of the evidence is against the claim, and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. Other Considerations The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As discussed above, the symptoms associated with the Veteran's lumbosacral spine disability and left lower extremity radiculopathy are reasonably contemplated by the established schedular criteria and higher schedular evaluations are available for greater levels of disability. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations are adequate, and no referral for extraschedular evaluation is required. Id. In reaching this determination, the Board acknowledges that the Veteran is service-connected for numerous other disabilities and has considered Mittleider v. West, 11 Vet. App. 181 (1998). The record does not show nor has the appellant expressly contended that an extraschedular rating is warranted for the period prior to May 12, 2011 based on consideration of all of his service-connected symptomatology. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability evaluation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. On review, the Veteran has been in receipt of a 100 percent schedular evaluation since March 28, 2007. A review of the file shows that entitlement to a TDIU rating was denied in November 2005 and was not appealed by the Veteran. Additionally, the information of record shows that the Veteran retired in June 2003. He did not lose any time during the 12 months preceding his last date of employment due to disability and no concessions were made due to disability. Under the circumstances of this case, the Board declines to infer an additional claim of entitlement to TDIU rating. ORDER For the period prior to May 12, 2011, an increased evaluation in excess of 40 percent for the service-connected DJD and DDD of the lumbosacral spine is denied. For the period prior to May 12, 2011, an increased initial evaluation in excess of 10 percent for the service-connected left lower extremity radiculopathy is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs