Citation Nr: 1316795 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 08-13 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased rating for service-connected lumbar spine disability, currently evaluated as 40 percent disabling. 2. Entitlement to an initial rating for service-connected radiculopathy of the left lower extremity, in excess of 20 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from February 1976 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. As to the lumbar spine and radiculopathy claims, the Veteran was granted service connection for degenerative disc disease of the lumbar spine with spondylolisthesis in an October 2004 rating decision; a 20 percent evaluation was assigned from September 30, 2002 and a 30 percent evaluation was assigned from September 27, 2004. The Veteran disagreed with the assigned ratings and a statement of the case was issued in January 2007. However, the Veteran failed to perfect his appeal by filing a timely substantive appeal. See 38 C.F.R. §§ 19.32 , 20.302(b) (2012); see also Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (the request for appellate review is completed by the claimant's filing of a substantive appeal after a SOC is issued by VA). A rating decision was issued in January 2007 in which the RO increased the disability rating assigned to the service-connected lumbar spine disability to 40 percent, effective September 26, 2003. The rating decision also granted entitlement to service connection for radiculopathy of the left lower extremity; a 20 percent evaluation was assigned effective September 30, 2002. In April 2007, the Veteran filed a notice of disagreement as to the January 2007 rating decision and, following the issuance of an SOC in April 2008, perfected his appeal by filing a timely substantive appeal (VA Form 9) in April 2008. The Veteran was scheduled to appear at the Louisville RO for a personal hearing on July 15, 2008. On July 1, 2008, the Veteran withdrew his request for a hearing. The Veteran's claims were previously remanded by the Board in July 2012. FINDINGS OF FACT 1. The Veteran's back disability manifests in complaints of limited range of motion, pain, and spasm, but without ankylosis or incapacitating episodes totaling at least 6 weeks in a 12-month period. 2. The Veteran's radiculopathy in his left lower extremity manifests in no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for a back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, Diagnostic Code 5243 (2012). 2. The criteria for a disability rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Here, the Veteran was sent a letter in July 2012 that fully addressed all notice elements. The letter provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in a July 2012 communication, and the claim was thereafter readjudicated in January 2013. Accordingly, any timing deficiency has been cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Nevertheless, the Board acknowledges that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. § 4.45 (2012). The schedular criteria which became effective September 26, 2003, provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. A 20 percent evaluation is warranted where there is evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or 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. A 40 percent evaluation, under those same regulations, requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). Pursuant to the revised rating criteria, intervertebral disc syndrome can also be evaluated by combining, under 38 C.F.R. § 4.25, separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. When evaluating on the basis of chronic manifestations, orthopedic disabilities should be evaluated using the criteria for the most appropriate diagnostic code or codes, and neurologic disabilities should be evaluated separately using the criteria for the most appropriate neurological diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective September 23, 2002) and General Formula for Diseases and Injuries of the Spine, Note (1) (effective September 26, 2003). An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician. Id. The criteria for evaluating the severity or impairment of the sciatic nerve is set forth under Diagnostic Codes 8520 (paralysis), 8620 (neuritis), and 8720 (neuralgia). See 38 C.F.R. § 4.124a. Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis. A 20 percent evaluation is warranted for moderate incomplete paralysis. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis of the lower extremity; the foot dangles and drops, no active movement is possible of the muscles below the knee, flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function which is substantially less than that which results from complete paralysis of these nerve groups, whether the loss is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The evidence indicates that the Veteran's back disability manifests in complaints of limited range of motion, pain and spasm, but without ankylosis or incapacitating episodes totaling 6 weeks or more in a 12-month period. (Diagnostic Code 5243 requires at least 6 weeks of incapacitating episodes with bed rest prescribed by a physician in a 12-month period for award of a rating higher than 40 percent. 38 C.F.R. § 4.71a.) The Board initially notes that while the Veteran has reported flare-ups of disc disease, the evidence does not reflect that the Veteran has suffered from incapacitating episodes requiring bed rest prescribed by a physician. Additionally, there is no information indicating that the Veteran suffers from unfavorable ankylosis. Specifically, the Veteran's VA treatment records and VA examination, to include the most recent examination in August 2012 indicates that the Veteran had some range of motion, even when considering the Veteran's weakened, painful movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. § 4.45 (2012). Additionally, the VA examination reports to include the most recent as well as treatment records revealed that the Veteran did not have any incapacitating episodes in the last year. Specifically, the Veteran indicated that he did suffer from flare-ups every few weeks, which resolved with rest in a chair or a bed for one to two hours. Thus, the evidence does not reflect that the Veteran has suffered from incapacitating episodes as defined by the rating schedule for a total duration of 6 weeks over a period of 12 months. The Board additionally finds that the preponderance of the evidence indicates that the Veteran's left lower extremity radiculopathy manifests in no more than moderate incomplete paralysis. VA treatment records indicate that the Veteran has complained of left leg pain radiating to the foot. Specifically, an October 2005 VA treatment note indicates that the Veteran had decreased sensation in the entire left leg with motor function at 5/5 and deep tendon reflexes at 2/4. An October 2008 general VA examination indicates normal muscle tone and motor function of the bilateral lower extremities with no muscle atrophy. There was decreased sensation to light touch of the left lateral thigh. Reflexes were noted as normal in all extremities. A January 2009 VA treatment note indicates that the Veteran's motor function was 4/5 in his lower extremities bilaterally, sensory to touch was intact and his deep tendon reflexes were 2+. A July 2009 treatment note indicates that the Veteran's sensation to touch was intact with 5/5 motor function and deep tendon reflexes at 2/4. Additionally, the Board notes that the most recent VA examination, in August 2012, indicates that the Veteran's left lower extremity symptoms are entirely subjective. Although the Veteran complains of severe pain and numbness, objective testing revealed no muscle atrophy, normal strength and no loss of sensation. The examiner indicated the Veteran's left side lower extremity radiculopathy was moderate in severity. Thus, taking all of the evidence of record into account, the Board finds that the competent evidence indicates that the Veteran's symptoms of left radiculopathy are no worse than moderate in severity. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disabilities but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria specifically contemplate the severity and symptomatology of the Veteran's disorders. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an increased rating for service-connected lumbar spine disability is denied. Entitlement to a higher rating for service-connected radiculopathy of the left lower extremity is denied. ______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs