Citation Nr: 1316100 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-41 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease of the lumbar spine with disc herniations, instability from spondylolisthesis and spinal stenosis, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for left lower extremity radiculopathy, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1958 to February 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. On the Veteran's substantive appeal (VA Form 9), received at the RO in October 2009, the Veteran requested a hearing before a Veterans Law Judge sitting at the RO. However, in a January 2011 communication, the Veteran's representative withdrew this request. Therefore, the Board finds that the Veteran's request for a hearing before a Veterans Law Judge has been withdrawn. See 38 C.F.R.§ 20.702(e) (2012). FINDINGS OF FACT 1. The Veteran's degenerative disc disease of the lumbar spine has not resulted in forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes. 2. The Veteran's radiculopathy of the left lower extremity is productive of mild, but not moderate, incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the Veteran's lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002);38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5235-5243 (2012). 2. The criteria for an rating in excess of 10 percent for the Veteran's radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.124a, DC 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). The VCAA notice, in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's claim for an increase in the disability rating arises from a disagreement with the initial evaluation that was assigned following the grant of service connection. Once service connection is granted, the claims are substantiated, additional notice is not required under the VCAA, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The duty to assist includes assisting the claimant in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records and post-service VA and private treatment records. In February 2009, the Veteran was afforded a VA compensation and pension examination germane to the appeal. In an April 2013 written statement from the Veteran's representative, it was stated that given the passage of time, the Veteran should undergo another VA examination. However, the Board notes that the passage of time alone does not trigger the need for a new examination. See VAOPGCPREC 11-95 (1995); see also Palczewski v. Nicholson, 21Vet. App. 174, 182 (2007). Furthermore, there is no evidence that the Veteran's disability has increased in severity since the time of his previous examination. Absent this evidence, the Board need not remand the Veteran's claim for a reexamination. The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4Vet. App. 384 (1993). II. Relevant Laws and Regulations Disability ratings are based on the average impairment of earning capacity established in the Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for loss of time from work proportionate to the severity of the disability. 38 C.F.R. § 4.1. 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). Because the Veteran is challenging the initially assigned disability rating, it has been in continuous appellate status since the original assignment of service connection. The evidence to be considered includes all evidence proffered in support of the original claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board may, however, grant different levels of compensation effective from different dates based on the evidence, throughout the period from the time the initial rating claim was filed in June 2008 until a final decision is made here. See Hart v. Mansfield, 121 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). A. Back Disability Under VA's Rating Schedule, disabilities of the spine are to be evaluated 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 under § 4.25. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2012). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis, reversed lordosis , or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2012). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined rating of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5237 Note (2). 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 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. (See also 38 C.F.R. § 4.71a, Plate V). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Code 5243, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. For purposes of evaluation under Diagnostic Code 5243 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. 38 C.F.R. § 4,71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2012). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Historically, the evidence shows that the Veteran was involved in a motorcycle accident in service which resulted in a compression fracture of the L3 and L4 discs. He submitted his initial claim for VA benefits in 2008, and in the 2009 rating action on appeal, he was granted service connection for the disabilities at issue, effective from the date of his claim. Post-service private treatment records dated in August 2005 revealed what was characterized as moderate age indeterminate compression fractures of the L3-L4 and multi-level degenerative disc disease. A June 2006 private treatment record reflects shallow disc protrusion, with moderate to severe spondyloscoliosis. In a February 2009 VA examination, the Veteran indicated that he suffered from constant aching pain across his lower back. The examiner noted decreased motion, stiffness, weakness and a mildly antalgic gait. The Veteran stated that he experienced flare-ups several times a week after bending and lifting. It was reported that the Veteran's range of motion was limited by pain. The Veteran's forward flexion of the thoracolumbar spine was 70 degrees. His extension was 10 degrees. The Veteran's left lateral flexion was 12 degrees and his left lateral rotation was 10 degrees. His right lateral flexion was 12 degrees and his right lateral rotation was 10 degrees. The examiner noted objective evidence of pain on both active and repetitive range of motion. The Board finds that the evidence of record more closely approximates the criteria for a 20 percent rating. A 20 percent rating is assigned for a combined range of motion of the thoracolumbar spine not greater than 120 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. See DC 5243. A rating higher than 20 percent is not for application because the Veteran did not have forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The Board recognizes that the Veteran was found to have pain during range of motion testing; however, even with that finding, the evidence does not show that the Veteran's range of motion is limited by that pain such that he would meet the criteria for a higher rating. Further, a rating is not warranted based on incapacitating episodes. See 38 C.F.R. § 4.71a, DC 5243 (2012). At the February 2009 VA examination, the examiner noted that there were no incapacitating episodes based on the Veteran's condition. The Veteran does not claim and the evidence of record does not show that the Veteran suffered from incapacitating episodes due to intervertebral disc syndrome involving the thoracolumbar spine which required bed rest prescribed by a physician and treatment by a physician. After a review of the entire record, the Board finds that the preponderance of the evidence is against the award of a disability rating in excess of 20 percent for a degenerative disc disease of the lumbar spine. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). B. Radiculopathy The Veteran's radiculopathy of the left lower extremity has been rated as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, complete paralysis of the sciatic nerve warrants an 80 percent rating. Incomplete paralysis is assigned ratings of 10 to 60 percent, depending on the severity of the claimant's symptoms. A 60 percent rating is assigned for severe incomplete paralysis with marked muscular muscle atrophy. A 40 percent rating is appropriate for moderately severe incomplete paralysis. Moderate incomplete paralysis warrants a 20 percent rating, and a 10 percent rating is assigned for mild incomplete paralysis. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124a. The Board notes that the terms "slight," "moderate," and "severe" under Diagnostic Code 8520 are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran underwent a VA examination in February 2009. In the examination, the Veteran complained of numbness on the bottom of both feet. He indicated that the numbness was constant in his left foot and that he would feel a "Charlie horse" type pain that would radiate through his thigh on his left leg. Upon examination, the examiner found that the Veteran had no muscular atrophy or loss of tone. The Veteran had 5/5 on his strength testing against resistance and gravity for all motions, excepting a 4/5 in the left ankle dorsifexion. The examiner observed diminished response to the pinprick along the left medial and lateral lower leg and medial foot and all toes. Given this evidence, the Board finds the 10 percent rating currently assigned to be proper. To warrant a 20 percent rating, the Veteran's radiculopathy would have to result in moderate incomplete paralysis. Here, however, the Veteran's radiculopathy has resulted in no functional loss in his left lower extremity. Based on this evidence, the Board finds that his radiculopathy of the left lower extremity more closely approximates the mild incomplete paralysis described by the 10 percent rating rather than the moderate paralysis required for a 20 percent rating. 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). The Board finds that the rating criteria contemplate the Veteran's lumbar spine and left lower extremity disabilities. While the Veteran's service-connected disabilities produce pain and limitation of motion, those manifestations are contemplated in the rating criteria. The Board finds that the symptoms associated with the Veteran's service-connected disabilities are adequately addressed by the applicable rating criteria. Further, the effects of pain and functional impairment have been taken into account and were considered in applying the relevant criteria in the rating schedule, but no additional limitations were found upon examination. See 38 C.F.R. § 4.40, 4.45, 4.59; DeLuca, 8 Vet App. 202. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular rating is not warranted. The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. VA treatment records dated in February 2009 show that the Veteran is retired due to eligibility by age or duration of work. As there is no evidence of unemployability due to the Veteran's disabilities, the question of entitlement to a TDIU is not raised. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine with disc herniations, instability from spondylolisthesis and spinal stenosis is denied. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs