Citation Nr: 1316896 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-36 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating (evaluation) in excess of 20 percent for residuals of a laminectomy and discectomy for a herniated nucleus pulposus at L5-S1. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, served on active duty from October 1967 to October 1971 and from July 1974 to October 1990. This case comes to the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Regional Office (RO) in Waco, Texas, which denied an increased rating for the lumbar spine disability. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. For the entire rating period of the appeal, the service-connected residuals of a laminectomy and discectomy for a herniated nucleus pulposus at L5-S1 has been manifested by back pain, radiating pain to the right lower extremity, sciatica to the left lower extremity, paraspinous muscle spasm, limitation of motion with restriction of forward flexion of the thoracolumbar spine greater than 30 degrees and functional loss, including due to pain. 2. For the entire appeal period, even with considerations of additional limitations due to pain and orthopedic factors, the Veteran did not experience forward flexion of the thoracolumbar spine 30 degrees or less, or ankylosis of the entire thoracolumbar spine, or incapacitating episodes due to the disc disease lasting a duration of at least 4 weeks during any 12 month period. 3. For the entire appeal period, there is no objective evidence of a separate and distinct neurological disability of the right lower extremity due to the lumbar spine disability. CONCLUSION OF LAW For the entire rating appeal period, the criteria for the assignment of a disability evaluation in excess of 20 percent for the service-connected residuals of a laminectomy and discectomy for a herniated nucleus pulposus at L5-S1 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5235-5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of the VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Veteran in October 2008, prior to the initial adjudication of the claim. The letter notified the Veteran of what information and evidence must be submitted to substantiate a claim for an increased rating, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of his claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA has a duty to assist a claimant in the development of a claim. This duty includes assisting a claimant 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 VA treatment records dated from March 2007 to September 2011 are associated with the claims folder. Records from the Veteran's private chiropractor dated in March 2009 are associated with the claims folder. The Veteran underwent VA examinations in November 2008, January 2010, and January 2011 to obtain medical evidence as to the nature and severity of the service-connected lumbar spine disability. The Board finds that the VA examinations were adequate for rating purposes. Each examination was performed by a medical professional based on either a review of claims file or solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The VA examiners measured the range of motion of the lumbar spine and considered whether there was evidence of range of motion limited by pain or by repetitive motion. The VA examiners also conducted neurological examination including a neurological examination of the lower extremities. The examination reports are accurate and fully descriptive. The January 2010 and January 2011 VA examination reports provide opinions as to the effects of the lumbar spine disability on the Veteran's ordinary activity and occupational impairment; therefore, the Veteran has been afforded adequate examinations of the lumbar spine. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor representative has otherwise challenged the adequacy of the VA examinations. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that the duties to notify and assist the Veteran in this claim have been met, so that no further VCAA notice or assistance to the Veteran is required. 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). Disability Rating Laws and Regulations 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. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40, and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.71a. Diagnostic Code 5235, Vertebral fracture or dislocation; Diagnostic Code 5236, Sacroiliac injury and weakness; Diagnostic Code 5237, Lumbosacral or cervical strain; Diagnostic Code 5238, Spinal stenosis; Diagnostic Code 5239, Spondylolisthesis or segmental instability; Diagnostic Code 5240, Ankylosing spondylitis; Diagnostic Code 5241, Spinal fusion; and Diagnostic Code 5242, Degenerative arthritis of the spine; are rated under the following new general rating formula for diseases and 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: A 10 percent disability evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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 rating is warranted for forward 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 spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is awarded for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. 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 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 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. 38 C.F.R. § 4.71a Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease 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 38 C.F.R. § 4.25. Under Diagnostic Code 5243, a 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Rating Lumbar Spine Disability A 20 percent rating was initially assigned to the service-connected lumbar spine disability under the former Diagnostic Code 5293, based on the Veteran having intervertebral disc disease, radiating pain, and limitation of motion or functional loss of the lumbar spine. In October 2008, the Veteran filed a claim for increased rating. The Veteran contends that he is entitled to a higher rating for his lumbar spine disability. In a statement dated in August 2009, the Veteran asserts that he was forced to quit his job as an instructor at a computer career center due to his back pain. He stated that he took pain medication daily and he was only able to walk 100 yards at a time before the back pain forced him to sit down. In an October 2010 statement, the Veteran indicated that he took Vicodin for his back pain. He stated that he was only able to stand for a couple of minutes and then he had to sit down to decrease the pain and numbness in the legs. The Board notes that a separate 10 percent rating is assigned to left sciatica under Diagnostic Code 8520 from February 22, 2007. In September 2011, the RO denied entitlement to a disability rating in excess of 10 percent for left sciatica and the Veteran did not perfect an appeal of this issue. The RO granted entitlement to TDIU from August 20, 2009. The Veteran was notified of the September 2011 rating decision and he did not perfect an appeal. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability evaluation in excess of 20 percent for the service-connected residuals of a laminectomy and discectomy for a herniated nucleus pulposus at L5-S1 for the entire rating appeal period. The evidence shows that, for the rating period on appeal, the service-connected lumbar spine disability has been principally manifested by subjective complaints of chronic pain with intermittent radiating pain to the left and right lower extremities, and findings of forward flexion limited to 45 to 60 degrees (limited by pain), extension limited to 5 to 20 degrees (limited by pain), and muscle spasm. There are no findings of limitation of flexion to 30 degrees or less for the time period in question, and the evidence does not show ankylosis of the thoracolumbar spine at any time. The January 2011 VA examination report indicates that, on examination, forward flexion was to 50 degrees and extension was to 15 degrees. Forward flexion was limited to 45 degrees after three repetitions and due to pain. Gait and posture were normal. There was no evidence of muscle spasm across paraspinal muscles or tenderness of the lumbar spine region. The January 2010 VA examination report indicates that, on examination, forward flexion was to 75 degrees and extension was to 10 degrees. Forward flexion was limited to 55 degrees after three repetitions and due to pain. Gait was normal. There was no evidence of muscle spasm across paraspinal muscles or tenderness of the lumbar spine region. The Veteran reported having constant back pain with flare-ups of sharp pain that lasted for 10 minutes and was alleviated by squatting or medication. The November 2008 VA examination report indicates that, on examination, forward flexion was to 80 degrees with pain at 60 degrees and extension was to 20 degrees with pain at 20 degrees. The Veteran had an antalgic gait. There was evidence of muscle spasm across paraspinal muscles or tenderness at the L3-L5 interspace. There was right leg radicular pain. Sensory examination was normal. The evidence shows that, even considering additional limitation of motion or function of the lumbar spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the lumbar spine disability more nearly approximates the criteria for a higher disability rating of 40 percent. Such factors that may additionally limit motion and function were considered and assessed by the various VA examiners. The VA examination reports indicate that the Veteran had forward flexion of the lumbar spine beyond 30 degrees even when pain and additional limitation of motion due to repetition were considered. There is no evidence of additional limitation of motion on repetition or due to pain, weakness, fatigability, weakness, or incoordination. The Board also finds that the demonstrated radiating low back pain (sciatica) to the right lower extremity is contemplated in the schedular rating criteria. The Board finds that the service-connected lumbar spine disability more nearly approximates the criteria for a 20 percent rating based upon the range of motion of the lumbar spine and muscle spasm, and has not for any period more nearly approximated the criteria for a higher disability rating of 40 percent. There is no evidence of forward flexion of the lumbar spine to 30 degrees or less. There are no objective findings of ankylosis of the lumbar spine. Ankylosis was not detected on any VA examination. Thus, the criteria for a rating in excess of 20 percent for the service-connected lumbar spine disability for the entire appeal period have not been met. A rating in excess of 20 percent is also not warranted for the lumbar spine disability under the provisions of Diagnostic Code 5243. The preponderance of the evidence establishes that the service-connected lumbar spine disability is not manifested by intervertebral disc syndrome productive of incapacitating episodes having a total duration of at least four weeks during the past 12 months. The treatment records and VA examination reports show that the Veteran had complaints of back pain with limitation of movement. There is no evidence that any physician prescribed bed rest or incapacitation. The Veteran has denied that any physician prescribed bed rest or incapacitation due to the lumbar spine disability. Physician-prescribed bed rest is the requirement for an incapacitating episode. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1. The January 2010 and January 2011 VA examination reports indicate that the Veteran reported having flare-ups of pain but he denied incapacitating episodes due to the lumbar spine disability. There is no medical documentation of totally incapacitating days. For these reasons, the Board also finds that a disability evaluation in excess of 20 percent for the lumbar spine disability is not warranted under Diagnostic Code 5243. 38 C.F.R. § 4.71a. For the entire appeal period, even with consideration of additional limitations due to pain and orthopedic factors, the Veteran did not experience forward flexion of the thoracolumbar spine 30 degrees or less, or ankylosis of the entire thoracolumbar spine, or incapacitating episodes due to the disc disease lasting a duration of at least 4 weeks during any 12 month period, as required for a higher disability rating than 20 percent. 38 C.F.R. §§ 4.3, 4.7. Entitlement to Separate Rating for Neurological Manifestations The Rating Schedule provides that any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note 1. The Board notes that a separate 10 percent rating is assigned to left sciatica under Diagnostic Code 8520 from February 22, 2007. In September 2011, the RO denied entitlement to a disability rating in excess of 10 percent for left sciatica and the Veteran did not perfect an appeal of this issue. Under Diagnostic Code 8520, a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). A disability rating in excess of 10 percent is not warranted for the sciatica of the left lower extremity. The medical evidence shows upon VA examination in January 2010 and January 2011, examination of the left extremity revealed decreased light touch and pinprick. There is no evidence of more than mild sensory symptoms. The 10 percent rating contemplates the pain and decreased pinprick and light touch due to the neurological disability in the left lower extremity. See 38 C.F.R. §§ 4.123, 4.124, and 4.124a, Diagnostic Code 8520. As such, the Board concludes that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 8520 for sciatica of the left lower extremity. In this case, the medical evidence does not establish a separate neurological disability of the right lower extremity that is due to the service-connected back disability. The evidence of record shows that the Veteran has intermittent radiating pain in the right lower extremity and intermittent decreased pinprick or light touch. The January 2010 VA examination report indicates that the Veteran had radicular symptoms but a separate neurological disability of the right lower extremity was not detected. The January 2011 VA examination report indicates that neurological and sensory examination of the right lower extremity was normal. The rating criteria for spine disabilities contemplates symptoms of radiating pain. 38 C.F.R. § 4.71a. For these reasons, the Board finds that the evidence does not establish that the service-connected lumbar spine disability is productive of a separate and distinct neurological disability of the right lower extremity, and a separate rating under the pertinent neurological rating criteria is not warranted. In summary, on this record, the assignment of a disability rating in excess of 20 percent for the service-connected lumbar spine disability is not warranted for the entire appeal period. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Extraschedular Consideration Finally, the Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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 the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, it must determine whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. As discussed, the Veteran's symptoms and functional limitations due to the lumbar spine disability are contemplated by the rating schedule, and the assigned schedular evaluations, therefore, are adequate. The rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. The rating criteria for spine disabilities contemplate limitation of motion of the spine and 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. The schedular rating criteria, the General Rating Formula for Diseases and Injuries of the Spine and the formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, specifically provide for disability ratings based on limitation of motion (flexion and combined ranges of motion, including ankylosis), including due to pain and other orthopedic factors which are incorporated into the schedular rating criteria (see 38 C.F.R. §§ 4.21 , 4.40, 4.45, 4.59; DeLuca), other objective findings such as muscle spasm, tenderness, altered gait, abnormal spinal contour, and loss of height of vertebral body. The schedular rating criteria also provide for separate ratings for objective neurological manifestations. Hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extraschedular consideration is not warranted. ORDER An increased rating in excess of 20 percent for the service-connected residuals of a laminectomy and discectomy for a herniated nucleus pulposus at L5-S1 is denied. ______________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs