Citation Nr: 1317894	
Decision Date: 06/03/13    Archive Date: 06/11/13

DOCKET NO.  07-36 929	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a right knee disability, including as secondary to service-connected residuals of a low back injury.

2.  Entitlement to service connection for a left knee disability, including as secondary to service-connected residuals of a low back injury.

3.  Entitlement to service connection for a left ankle disability, including as secondary to service-connected residuals of a low back injury.

4.  Entitlement to service connection for a left foot disability, including as secondary to service-connected residuals of a low back injury.

5.  Entitlement to an increased evaluation for residuals of a low back injury, rated 20 percent disabling prior to March 19, 2010.  

6.  Entitlement to an increased evaluation for residuals of a low back injury, rated 40 percent disabling since March 19, 2010.  

7.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Lipstein


INTRODUCTION
The Veteran served on active duty from June 1980 to September 1992.

The low back matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The right knee, left knee, left ankle, left foot and TDIU matters come before the Board of appeal from a February 2010 rating decision of the VA RO in Waco, Texas.  

In February 2008, the Veteran requested a hearing before the Board in connection with his appeal of the low back issue.  In his September 2011 VA Form 9, the Veteran requested a hearing before the Board in connection with his appeal of the issues of entitlement to service connection for bilateral knee, left ankle, and left foot disabilities, as well as the TDIU claim.  He submitted a statement in February 2012 indicating that he wanted to cancel his hearing requests.  As such, there are no outstanding hearing requests.

The issues of entitlement to service connection for right knee, left knee, left ankle, and left foot disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  For the appeal period prior to August 13, 2008, the Veteran's residuals of a low back injury were not productive of any incapacitating episodes; favorable ankylosis; or limitation of thoracolumbar forward flexion to 30 degrees or less, even considering any additional limitation of motion from pain and repetitive motion.

2.  Since August 13, 2008, the Veteran's residuals of a low back injury are manifested by forward flexion of the thoracolumbar spine to 30 degrees or less.  

3.  Since December 8, 2006, the Veteran's residuals of a low back injury are not productive of any incapacitating episodes during the past 12 months; or unfavorable ankylosis.   

4.  From December 8, 2006, to December 9, 2011, the Veteran's low back disability was productive of neurologic impairment of the left lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic or external popliteal nerve.

5.  From December 8, 2006, to December 9, 2011, the Veteran's low back disability was productive of neurologic impairment of the right lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic or external popliteal nerve.

6.  Since December 9, 2011, the Veteran's low back disability has been productive of neurologic impairment of the left lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve.

7.  Since December 9, 2011, the Veteran's low back disability has been productive of neurologic impairment of the right lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve.

8.  The evidence shows that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation.


CONCLUSIONS OF LAW

1.  For the appeal period prior to August 13, 2008, the criteria for a disability rating in excess of 20 percent rating for residuals of a low back injury have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2012).

2.  Since August 13, 2008, the criteria for a 40 percent disability rating, but no higher, for residuals of a low back injury have been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5235-5243 (2012).

3.  Effective December 8, 2006, the criteria for a separate 10 percent rating, and no more, for radiculopathy of the left lower extremity have been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DCs 8520-8521 (2012).

4.  Effective December 8, 2006, the criteria for a separate 10 percent rating, and no more, for radiculopathy of the right lower extremity have been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DCs 8520 (2012).

5.  Since December 9, 2011, 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. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DCs 8520 (2012).

6.  Since December 9, 2011, the criteria for a disability rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; DCs 8520 (2012).

7.  The criteria for a TDIU have been met.  38 U.S.C.A. §§ 1154, 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.  Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide.  38 C.F.R. § 3.159(b). 

VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA.  See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004).  VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). 

With regard to the low back claim, the notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in January 2007. 

The Veteran has been afforded a hearing before a RO Decision Review Officer (DRO) in which he presented oral argument in support of his low back claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the DRO who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.   

Here, during the hearing, the DRO did not note the bases of the prior determinations or the elements that were lacking to substantiate the low back claim.  The DRO did not ask specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating.  The DRO did not specifically seek to identify any pertinent evidence not currently associated with the claim.  This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms since service.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  

Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the DRO hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). 

The claimant was provided the opportunity to present pertinent evidence.  The record contains records of medical treatment received from VA and private treatment providers. Additionally, efforts were made to obtain treatment records from the North Texas Health Care System for the period from November 1, 2006 through November 20, 2006.  Requests for these records were made in March 2007 and May 2007.  In May 2007, a negative response was received from North Texas Health Care System, indicating nothing before November 21, 2006.  The Veteran was notified of this fact in May 2007.  
 
The duty to assist includes the duty to provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim, as defined by law.  VA examined the medical history of the Veteran's low back disability.  Findings from the examination reports are adequate for the purposes of deciding the claim on appeal.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Although the Veteran raised questions in October 2008 about the accuracy of the August 2008 VA examination, the Board has reviewed the examination report and finds that it is adequate for the purpose of fairly adjudicating this appeal.  Significantly, the Board observes that the Veteran has not reported that the low back disability has worsened since the most recent VA examination in December 2011.  As such, a remand is not required solely due to the passage of time since the December 2011 VA examination.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).  

In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication.  VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law.  Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim.  Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim.  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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Increased Evaluation for Residuals of a Low Back Injury

Legal Criteria

A January 1993 rating decision granted service connection for low back disability, and assigned a 10 percent disability rating effective September 5, 1992.  A June 1999 rating decision continued the 10 percent disability rating.  The Veteran did not file a notice of disagreement related to the June 1999 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision.  See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  Thus, the June 1999 rating decision became final based on the evidence then of record.  38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012).  The Veteran filed the increased rating claim on appeal in December 2006.  The June 2007 rating decision on appeal assigned a 20 percent rating for the low back disability, effective December 8, 2006.  A June 2010 rating decision assigned a 40 percent rating for the Veteran's low back disability, effective March 19, 2010.  The Veteran's low back disability is currently rated under DC 5242.  

Under VA's Rating Schedule, the applicable criteria for evaluating disability of the spine provide a single set of criteria for rating conditions of the spine, the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula).  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. 

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. 

Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately.  See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  However, the evaluation of the same disability under various diagnoses is to be avoided.  See 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993).  When a disability is not specifically listed in the Rating Schedule, it may be rated under a closely related injury in which the functions affected and the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20 (2012). 

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).  If a Veteran appeals a rating decision seeking an increased rating for a disability for which service connection has already been established, such as here, then the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  More recently the Court has held that 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.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Thus in deciding the claim below, the Board has considered whether different ratings may be warranted for different time periods based on the evidence of record. 

The Veteran's statements describing the symptoms of his service-connected low back disability are deemed competent evidence, and these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria.  38 C.F.R. § 3.159 (2012). 

On evaluating the condition of service-connected disability, if it is not possible to separate the effects of a service-connected condition from that of a nonservice-connected condition, then 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor; that is, any such ambiguity as to the origin of such signs and symptoms shall be attributed to the service-connected disability.  Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Thus, in this case, if any symptoms cannot be distinguished as between service-connected and nonservice-connected symptomatology, the Board must consider both as service-connected disability.  Id. 

The RO has evaluated the appealed disability ratings under rating criteria for evaluating the musculoskeletal system, under 38 C.F.R. § 4.71a (2012).  38 C.F.R. § 4.71a, Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 

When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a. 

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, a 20 percent rating is warranted for 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.  38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5235 to 5243 (2012).

A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  Id.  A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  Id.  Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating.  Id.  Finally, unfavorable ankylosis of the entire spine warrants a 100 percent evaluation.  Id. 

The notes discussed below in pertinent part follow and pertain to the General Rating Formula for Diseases and Injuries of the Spine: 

Note (1) 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): 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 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.  (See also 38 C.F.R. § 4.71a, Plate V). 

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 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 (0 degrees) always represents favorable ankylosis. 

When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss.  DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).  This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etcetera., particularly during times when these symptoms 'flare up,' such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria.  Id; see also 38 C.F.R. §§ 4.40, 4.45 and 4.59.  The Board observes that the Court noted that when rating spine disabilities, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue.  See Cullen v. Shinseki, 24 Vet. App. 74, 85 (2010).  

Recently, the Court clarified that 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); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  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.  Thus, 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).  

Intervertebral Disc Syndrome (IVDS) is rated under Diagnostic Code 5243, based upon the frequency of incapacitating episodes.  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.  The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a.

Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings 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.  Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  38 C.F.R. § 4.71a.

The Veteran seeks an increased evaluation for the low back disability.  Separate disability ratings are in effect for left and right lower extremity radiculopathy associated with residuals of low back injury.  Consideration of any associated radicular pain in the lower extremities is inherent in the evaluation of the claim on appeal for an increased evaluation for the lumbar spine disability.  See Note (1) following 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  Therefore, as part of the current appeal the Board has considered any separately evaluated objective neurologic abnormalities associated with the low back disability.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Factual Background

The Veteran underwent a VA examination in February 2007.  He reported that, over the previous year, he worked as a live-in home health care aide for a 20 year old paraplegic male and his elderly mother.  He stated that he had primarily 8 out of 10 mechanical low back pain over the previous year.  He reported that this pain radiated into the bilateral buttocks and posterior upper thigh.  He stated that this pain was exacerbated by prolonged sitting, driving, bending, and twisting.  He reported that he was able to perform all activities of daily living and those required of his employer, although he was in constant pain.  He denied taking any form of non-steroidal anti-inflammatory drugs or other analgesics for this condition.  He stated that he could easily walk one mile without difficulty.  He denied any bowel or bladder compromise symptoms, although he did report some difficulty attaining and maintaining an erection.  

Upon physical examination, there was exaggerated tenderness to palpation of the lumbar spinous processes, bilateral paraspinous musculature, sacroiliac joints and sciatic notches.  Pre-repetitive range of motion showed forward flexion of 50 degrees, extension of 20 degrees, left lateral flexion of 10 degrees, right lateral flexion of 12 degrees, left rotation of 26 degrees, and right rotation of 24 degrees.  Post-repetitive range of motion showed forward flexion of 40 degrees, extension of 24 degrees, left lateral flexion of 14 degrees, right lateral flexion of 20 degrees, left rotation of 30 degrees, and right rotation of 30 degrees. The Veteran complained of pain throughout the course of performing these repetitive range of motion exercises of his low back, radiating into the bilateral buttocks.  There was no evidence of weakness, fatigability, or lack of coordination performing these.  There was no noticeable muscle atrophy of the bilateral lower extremities or the thoracolumbar musculature.  Sensory examination showed subjective decreased sensation to light touch of the S1 and L5 dermatomes on the left.  Two-point discrimination was unable to be assessed.  The Veteran denied being able to discriminate two points of contact of the S1 or L5 dermatomes at 30 millimeters.  Motor strength of all motor groups of the bilateral lower extremities was 5 out of 5.  Deep tendon reflexes were equal and physiologic.  Babinski was negative bilaterally.  Straight leg raising was negative both sitting and standing.  There was much grimacing and complaints of pain to the low back with lying straight leg raise testing.  Waddell's signs were positive at 6 out of 8.  The examiner diagnosed moderate degenerative joint disease with anterior and lateral osteophytes at all levels.  Moderate to severe L3-L4 and L4-L5 degenerative disc disease with narrowing, anterior and posterior osteophytes and vacuum phenomenon.  Other disk spaces preserved and vertebral bodies were well-aligned.  

VA treatment records dated in March 2007 reflect that the Veteran reported that chronic low back pain worsened in the previous few weeks.  He denied any recent trauma or fall.  He denied focal motor or sensory weakness.  He denied urinary or stool incontinence.  In April 2007, the Veteran's low back pain progressively worsened.  He stated that pain was at a level of 8 out of 10, and got as bad as 10 out of 10.  He reported that the pain was constant and sharp.  He stated that he had numbness in both legs.  He reported that the pain was aggravated by prolonged sitting or standing, as well as by bending over.  He denied bowel or bladder incontinence, fever/chills, and weight loss.  The Veteran did not have joint deformity or subluxation anywhere.  There was no spinous process tenderness or sciatic notch tenderness.  There was lumbar pigmented villonodular synovitis.  The examiner diagnosed low back pain, degenerative disc disease and degenerative joint disease.  In June 2007, MRI findings revealed multilevel degenerative disc and endplate changes with loss of disc height and with the small central disc protrusion at L5-S1.  Multilevel small annular tear in the discs was noted.  There was no sign of spinal stenosis and neural foramina were patent at all levels.  There was incidental multiple small hemangiomas.  In September 2007, partial loss of normal lordosis was noted.  Lumbar vertebral body height and alignment were normal.  There was no compression collapse of vertebral bodies and no sign of demonstrable traumatic lesions of the lumbosacral spine.  Multilevel degenerative changes with large bony anterolateral osteophyte formation were seen indent lumbosacral spine, especially at L4 and L5.  Facet degenerative changes and sclerosis was also noted in the lower lumbar spine at L4-L5 and L5-S1.  Intervertebral disc space height was reduced at L3-L4, L4-L5 and possibly L5-S1 levels suggestive of chronic degenerative disc changes.  No paravertebral soft tissue abnormalities were noted.  Sacroiliac joints were unremarkable.  

MRI findings dated in April 2008 revealed multilevel intervertebral disc degeneration with desiccation and height loss.  There were disc protrusions at L5-S1 and L4-5 levels with mild thecal sac compression but without spinal stenosis.  

The Veteran had another VA examination in April 2008.  He reported numbness, tingling, and electric sensation throughout the legs and feet.  He noticed that he had numbness of his legs when he drove for 20 minutes.  He complained of near constant low back pain and difficulty sitting for very long.  He stated that he was independent in activities of daily living.  He reported trouble dressing and reaching his feet to put on shoes and socks.  He denied incapacitating flare-ups of pain.  

Upon physical examination, examination of the lower extremities revealed straight leg raising negative to 90 degrees.  Motor strength was 5 out of 5 in both lower extremities.  Deep tendon reflexes were a brisk 2+ patella and 2+ Achilles.  Babinski was negative.  Sensory examination showed loss of sharp sensation in the entirety of both lower extremities and both feet in all dermatomes.  The examiner noted that the neuropathy-like complaints of the lower extremities was nonphysiologic.  The examiner noted that the Veteran claimed to have loss of sharp sensation in all dermatomes of the lower extremities, and that this was consistent with a psychological or functional problem, or malingering.  

At the July 2008 DRO hearing, the Veteran stated that he could not lift more than 10 pounds.  He reported that he could not bend over to tie his shoes.   

The Veteran had another VA examination on August 13, 2008.  He complained of nearly constant low back pain with numbness of his legs.  He wore a back brace over the previous three weeks and stated that it was not helpful.  He reported that he no longer drove because his legs went to sleep.  He reported that walking distance was limited to about 20 yards and his ability to stand was limited to 5 to 10 minutes.  He stated that for most of his adult life he did hard labor, construction and tunneling.  He reported that he was retired for two years.  He denied any physician prescribed bedrest for back pain.  He stated that he mostly sat or lay around his trailer and did very little activities.  He complained of increased pain and limitations with repetitive use.  He denied incapacitating flare-ups of pain.  He stated that he only got partial relief of his back pain from his narcotic pain relievers.  

Upon physical examination, there was tenderness and retraction from the examiner with light skin touch and complaint of back pain with light touch.  This began at about the T-12 level, which was the highest area examined and extended all the way to the sacrum and paraspinous muscles, SI joint areas, and buttocks.  Waddell signs showed positive pain and retraction with light skin touch, positive back pain with axial rotation, positive back pain with cervical compression.  The examiner noted that the Veteran complained of pain as soon as he started to move.  Flexion was to approximately 5 degrees, extension was to 5 degrees, lateral bend left and right were to 5 degrees, rotation left and right were to 5 degrees.  There was a constant complaint of pain with any attempt to get the Veteran to move his spine.  Repetitive motion was not done because there was almost no motion to begin with and there would be nothing accomplished by trying to do repetitive motion.  Deep tendon reflexes were 2+ patella and 2+ Achilles.  Babinski was negative.  Motor strength was 5 out of 5.  It took repeated stern encouragement to get the Veteran to give any effort in muscle testing.  Sensory examination was nonphysiologic.  The Veteran was unable to feel the sharp stimulus in the legs.  The examiner diagnosed chronic back pain secondary to degenerative disease of L4-5 and L5-S1.  The examination was completely nonphysiologic.  All of the Waddell signs done were positive.  The examiner stated that there was significant functional overlay or conscious malingering evident in the examination.  The examiner stated that the examination showed the same problems in sensory recognition as the previous examination.  

VA treatment records dated in March 2009 reflect that the Veteran recently fell in the bathtub and sprained his back.  He reported that pain was at a level of 2 to 4 out of 10.  He stated that his thighs went numb right down to his feet if he sat or stood too long.  He reported that the right and left legs were equally involved.  He reported fasciculations in the thigh muscles sometimes.  Lumbar range of motion decreased in all phases due to pain.  Lower extremity strength was 5 out of 5.  Straight leg raising was negative.  Deep tendon reflexes were present and symmetrical.  Neurovascular were grossly intact.  The Veteran was assessed with lumbar pain, degenerative disc disease and degenerative joint disease.  There was no clear evidence of radiculopathy, but radicular symptoms in both lower extremities were endorsed.  

Private treatment records from East Texas Radiology Consultants dated in July 2009 reflect that the Veteran underwent a CT of the lumbar spine and was assessed with degenerative disc disease with spondylosis and impingement but no stenosis.  

In September 2009, the Veteran denied loss of sensation/numbness, tingling, tremors, weakness, paralysis, seizures, fainting, and blackouts.  

The Veteran underwent another VA examination on March 19, 2010.  The examiner noted that the Veteran is a former truck driver and construction worker.  The Veteran's main complaints were chronic pain in the lumbar spine.  He reported that he took morphine, hydrocodone, carisoprodol and baclofen in various ratios for pain management.  He stated that back injections were performed with marginal benefit of short duration.  The Veteran stated that he used a back brace and a cane, but was unable to do much as a result of his chronic back pain.  The Veteran was unable to stand more than 30 minutes or walk a quarter mile.  He denied heat, swelling, redness, tenderness or other signs of lumbar spinal inflammation. 

Upon physical examination, the lumbar spine demonstrated scoliosis, but there was a normal thoracic kyphosis and a normal lumbar lordosis.  His occiput touched the wall in a three-point stance.  He stood erect, but he had difficulty due to lumbar pain when asked to stand with knees locked.  There was a great deal of pain sounds and bracing/pain behavior throughout the examination in all maneuvers.  While there were signs of some mild disuse of paraspinal muscles, the Veteran also had some neuromuscular inhibition with palpation.  There were some contractions of the back muscles, and there were numerous areas of palpable tenderness along the lumbar spine.  Flexion was to 30 degrees, extension was to 10 degrees, left and right lateral flexion were to 10 degrees, and left and right lateral rotation were to 10 degrees.  There were pain sounds made at the endpoint of each of the above maneuvers and a great deal of inhibition when encouraged to do so.  Deep tendon reflexes were 2+ at the knees and ankles, and they were symmetrical.  The Veteran had normal skin sensation of his legs, feet and toes and normal circulation in the feet.  He demonstrated only fair extensor halluces longus muscle strength, and resistive strength of the quadriceps was assessed at 4 out of 5 bilaterally.  While there were no quadriceps atrophy and negative straight leg raising signs bilaterally, the Veteran had pain throughout all of these maneuvers.  With repetitive motion times three, there was no additional loss of range of motion due to pain, fatigue, weakness, lack of endurance or incoordination.  The examiner diagnosed multilevel degenerative disc disease; central disc protrusion, L5/S1; no evidence of spinal stenosis; and normal neuroforamina without evidence of sciatica.  

The Veteran underwent another VA examination in May 2011.  Upon physical examination, deep tendon reflexes were 2+ equal in the lower extremities.  Motor strength was 5 out of 5 throughout.  There was decreased sensation to touch and pain in both lower extremities.  The examiner diagnosed degenerative joint disease of the lumbar spine.  

VA treatment records dated in June 2011 reflect that the Veteran had full strength throughout the lower extremities.  He had normal knee jerk and ankle jerk bilaterally.  Seated straight leg raising was positive on the right and left.  Facet loading test was positive on the right and left.  Lumbar range of motion was impaired at the end ranges.  Tone was good and there was no right or left clonus.  Left and right drop foot was negative.  

The Veteran had another VA examination on December 9, 2011.  He reported radiating pain from the lumbar spine into the bilateral lower legs.  He stated that the pain went into the buttocks to the posterior thighs and would go to the feet.  He reported that back pain was 7 out of 10.  He denied bowel or bladder changes, surgery, or further injury or trauma.  He reported that the pain was sharp in nature.  He stated that there was clicking and popping in the spine with pain.  He reported locking and stiffness.  He stated that coughing and sneezing increased his pain.  He reported unsteadiness and falling.  He stated that activities of daily living were difficult to accomplish, but not limited.  He reported that he used a brace.  He stated that his medication helped to take the edge off his pain.  He reported that walking was limited to 50 feet.  He stated that standing was limited to 10 minutes.  He reported that daily flare-ups caused him to seek bed rest or rest in a chair, and that he had to constantly change positions.  

Upon physical examination, flexion was to 10 degrees and painful motion began at 10 degrees.  Extension was to 10 degrees and painful motion began at 10 degrees.  Right and left lateral flexion was to 10 degrees and painful motion began at 10 degrees.  Right and left lateral rotation was to 10 degrees and painful motion began at 10 degrees.  The Veteran's range of motion was still very limited on direct testing.  He was able to sit in the waiting area and exam room with the back and hips flexed to 90 degrees with evidence of discomfort.  The examiner noted that the direct testing was probably somewhat inaccurate.  Following repetitive-use testing, flexion, extension, right and left lateral flexion, and right and left lateral rotation were to 10 degrees.  The Veteran did not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing.  His functional loss, functional impairment and/or additional limitation of range of motion of the thoracolumbar spine after repetitive use was less movement than normal, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing.  There was tenderness to palpation at the L4 to S1 level, as well as positive Waddell's sign for axial loading.  The Veteran did not have guarding or muscle spasm of the thoracolumbar spine.  Right and left knee and ankle deep tendon reflexes were 1+.  The right and left upper anterior thigh and thigh/knee had normal sensation to light touch.  The right and left lower leg/ankle and foot/toes had decreased sensation to light touch.  The Veteran could feel pressure, but had difficulty with sharp/dull.  Right and left straight leg raising tests were positive.  The Veteran had mild constant right and left lower extremity pain.  He had moderate intermittent right and left lower extremity pain.  He had moderate right and left lower extremity paresthesias and/or dysesthesias.  He had mild right and left lower extremity numbness.  He had no other signs or symptoms of radiculopathy.  The examiner noted that there was both left and right sciatic nerve involvement.  The examiner stated that the Veteran had IVDS of the thoracolumbar spine.  The Veteran did not have incapacitating episodes over the past 12 months due to IVDS.  The examiner stated that, due to a thoracolumbar spine condition, there was not functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis.  The examiner diagnosed lumbar spine multi-level degenerative disc disease with protrusions and neuroforaminal stenosis, as well as bilateral lower extremity radicular symptoms secondary to lumbar spine.  The examiner stated that the Veteran's thoracolumbar spine condition did not impact his ability to work.  The examiner noted that the Veteran is not working.  


Analysis

On review of the evidence available and discussed above, the evidence on file does not show symptoms warranting a rating in excess of 20 percent for the period on appeal prior to August 13, 2008.  Specifically, the evidence as discussed above does not show forward flexion of the thoracolumbar spine limited to 30 degrees or less, even after consideration of pain, weakness and other symptoms described in DeLuca.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012).  In February 2007, pre-repetitive forward flexion was to 50 degrees and post-repetitive flexion was to 40 degrees.  The examiner noted that the Veteran complained of pain throughout the course of performing the repetitive range of motion exercises of the low back.  In light of the above, because the findings do not reflect forward flexion of the thoracolumbar spine limited to 30 degrees or less, an evaluation in excess of 20 percent is not warranted.  

With regard to the appeal period prior to August 13, 2008, the evidence does not show that there was favorable ankylosis of the lumbar spine.  See 38 C.F.R. § 4.71a, DC 5242 (2012).  At the February 2007 VA examination, pre-repetitive range of motion showed forward flexion of 50 degrees, extension of 20 degrees, left lateral flexion of 10 degrees, right lateral flexion of 12 degrees, left rotation of 26 degrees, and right rotation of 24 degrees.  Post-repetitive range of motion showed forward flexion of 40 degrees, extension of 24 degrees, left lateral flexion of 14 degrees, right lateral flexion of 20 degrees, left rotation of 30 degrees, and right rotation of 30 degrees.  The Veteran complained of pain throughout the course of performing these repetitive range of motion exercises of his low back.  In light of the above, the findings do not reflect favorable ankylosis of the spine.  

After resolving all doubt in favor of the Veteran, the Board finds that effective August 13, 2008, the Veteran's lumbar spine disability more nearly approximates a 40 percent rating.  The August 13, 2008 VA examiner noted that flexion was to approximately 5 degrees.  Although the examiner stated that there was significant functional overlay or conscious malingering evident in the examination, the Veteran's flexion was to 30 degrees on the next VA examination in March 2010.  Thus, with resolution of reasonable doubt in the Veteran's favor, the Board will assign a 40 percent evaluation effective August 13, 2008.  

However, an evaluation in excess of 40 percent since August 13, 2008, is not warranted as there is no objective evidence supporting an evaluation of 50 percent even considering his complaints of pain and functional loss.  The evidence does not show that there was unfavorable ankylosis of the lumbar spine.  See 38 C.F.R. § 4.71a, DC 5242 (2012).  At the August 13, 2008 VA examination, flexion was to approximately 5 degrees, extension was to 5 degrees, lateral bend left and right were to 5 degrees, and rotation left and right were to 5 degrees.  In March 2010, flexion was to 30 degrees, extension was to 10 degrees, left and right lateral flexion were to 10 degrees, and left and right lateral rotation were to 10 degrees, with pain sounds made at the endpoint of each of the above maneuvers.  In December 2011, flexion was to 10 degrees and painful motion began at 10 degrees; extension was to 10 degrees and painful motion began at 10 degrees; right and left lateral flexion were to 10 degrees and painful motion began at 10 degrees; and right and left lateral rotation were to 10 degrees and painful motion began at 10 degrees.  In light of the above, the findings do not reflect unfavorable ankylosis of the spine.  

DeLuca

In reaching these determinations, the Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, even where there is compensable loss as a result of limitation of motion.  DeLuca v. Brown, 8 Vet. App. at 205-06.  To receive disability compensation, however, for painful motion, that pain must result in functional loss, i.e., limitation in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination or endurance."  See 38 C.F.R. § 4.40; see also Mitchell, 25 Vet. App. at 38.  In other words, "although pain may cause functional loss, pain itself does not constitute functional loss" that is compensable for VA benefit purposes.  Mitchell, 25 Vet. App. at 37.  

In February 2007, there was no evidence of weakness, fatigability, or lack of coordination performing range of motion testing.  In April 2008, the Veteran was independent in activities of daily living.  In December 2011, the Veteran reported that activities of daily living were difficult to accomplish, but not limited, and the functional loss, functional impairment, and/or additional limitation of range of motion of the thoracolumbar spine after repetitive use was less movement than normal, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing.  The Board finds that functional loss due to pain affecting some aspect of the normal working movements of the body has been considered and does not provide a basis for higher ratings.  Moreover, the Board finds that functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination has been considered and 38 C.F.R. § 4.40, 4.45 and 4.59 do not provide a basis for a higher rating.  See DeLuca, 8 Vet. App. at 204-07.  Here, given the Veteran's activities of daily living, including his ability to lift 10 pounds, and his overall range of motion, the Boards finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 20 percent prior to August 13, 2008 and 40 percent from that date, based on limitation of motion.

In addition, the Board acknowledges that the Veteran treats his low back disability with pain medications.  Here, given the objective findings of the range of motion studies, the Board concludes that the 20 percent rating prior to August 13, 2008 and 40 percent rating from that date most closely approximates the Veteran's functional loss due to limitation of motion.  Cf. Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria).  

Moreover, the Board finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 20 percent prior to August 13, 2008 and 40 percent from that date under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  On August 13, 2008, the Veteran denied any physician prescribed bedrest for back pain.  Additionally, in December 2011, he did not have any incapacitating episodes over the previous twelve months due to intervertebral disc syndrome.  Therefore, a higher rating under Diagnostic Code 5243 based on incapacitating episodes is not warranted.

Associated Neurologic Abnormality

As provided in Note (1), the Board is directed to evaluate any associated objective neurological abnormalities under an appropriate diagnostic code.  38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012).  

The Veteran's radiculopathy of the left and right lower extremities are rated zero percent disabling from September 10, 2010, 10 percent disabling from May 25, 2011, and 20 percent disabling from December 9, 2011 under the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8599-8521 (2012).  When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last 2 digits.  Hyphenated diagnostic codes will be used where a disability is rated on the basis of its residuals.  38 C.F.R. § 4.27.  Here, the Veteran's radiculopathy of the left and right lower extremities is rated by analogy to the criteria for paralysis of the external popliteal nerve (common peroneal).  

Diagnostic Code 8521 provides that mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling.  Complete paralysis of the external popliteal nerve, foot drop and slight drop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling.  

Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent rating requires moderate incomplete paralysis of the sciatic nerve; a 40 percent rating requires moderately severe incomplete paralysis; a 60 percent rating requires severe incomplete paralysis with marked muscular atrophy; an 80 percent rating requires complete paralysis of the sciatic nerve.  When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost.

For the entire period on appeal, the Veteran has reported low back pain radiating into the lower extremities.  He denied sensory weakness in March 2007.  He reported numbness in the lower extremities in April 2007, April 2008, and August 2008.  He denied loss of sensation/numbness, tingling, weakness and paralysis in September 2009.  In March 2010, the Veteran had normal skin sensation of his legs, feet and toes and normal circulation in the feet.  In May 2011, there was decreased sensation to touch and pain in both lower extremities.  In June 2011, the Veteran had full strength throughout the lower extremities and left and right drop foot was negative.  On December 9, 2011, the Veteran had mild constant right and left lower extremity pain.  He had moderate intermittent right and left lower extremity pain.  He had moderate right and left lower extremity paresthesias and/or dysesthesias.  He had mild right and left lower extremity numbness.  He had no other signs or symptoms of radiculopathy.  The examiner noted that there was both left and right sciatic nerve involvement.  

For the appeal period prior to December 9, 2011, the Veteran had pain and occasional numbness down the right and left legs.  However, the Veteran denied sensory weakness, tingling and paralysis.  Moreover, the Veteran had normal skin sensation of his legs, feet and toes and normal circulation in the feet in March 2010, and there was full strength throughout the lower extremities in June 2011.  The Board finds that based on the lay and medical evidence that the Veteran had mild radiculopathy of the right and left lower extremities for the period prior to December 9, 2011.  Resolving any doubt in the Veteran's favor, the Board finds that the medical and lay evidence supports his entitlement to separate 10 percent ratings, and no more, under Diagnostic Codes 8520 and 8521, for radiculopathy of the right and left lower extremities for the appeal period prior to December 9, 2011.

For the period from December 9, 2011 to present, the Veteran had mild constant right and left lower extremity pain.  He had moderate intermittent right and left lower extremity pain.  He had moderate right and left lower extremity paresthesias and/or dysesthesias.  He had mild right and left lower extremity numbness.  He had no other signs or symptoms of radiculopathy.  Thus, the Board finds that the Veteran has no more than moderate radiculopathy of the right and left lower extremities.  The Board finds that disability ratings in excess of 20 percent are not warranted under Diagnostic Codes 8520 and 8521 for radiculopathy of the right and left lower extremities for the appeal period since December 9, 2011.

Other Potentially Associated Objective Neurologic Abnormalities

The competent evidence does not reflect any other objective neurologic abnormalities associated with the lumbar spine disability, so as to warrant a separate evaluation on that account.  The Veteran denied bowel or bladder function problems in February 2007, March 2007, and December 2011.  Moreover, although the Veteran reported some difficulty attaining and maintaining an erection in February 2007, there is no indication, nor does the Veteran allege, that he has erectile dysfunction due to his low back disability.

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 extra-schedular 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 extra-schedular 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 low back disability claim decided here.  He has not reported unusual or exceptional features associated with his low back disability and the discrete manifestation of the low back disability, i.e., limitation of motion of the lumbar spine and neurological impairment of the lower extremities is contemplated by the rating criteria.  The rating criteria are therefore adequate to evaluate the disability, and referral for consideration of extraschedular rating is not warranted.  

TDIU

Criteria & Analysis

In this decision, the Board grants a TDIU.  As this represents a complete grant of the benefits sought on appeal with regard to this issue, no discussion of VA's duty to notify and assist is necessary.

The Veteran presently seeks a TDIU, indicating that his service-connected disabilities prevent his from following and maintaining gainful employment.  

Under the applicable criteria, a TDIU may be assigned where a Veteran's schedular rating is less than total where it is found that that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16. 

Service connection is in effect for residuals of low back injury, currently rated 40 percent disabling, radiculopathy of the left lower extremity associated with residuals of low back injury, currently rated 20 percent disabling, radiculopathy of the right lower extremity associated with residuals of low back injury, currently rated 20 percent disabling, and right wrist ganglion cyst, currently rated zero percent disabling.  

The Board notes that under 38 C.F.R. § 4.16(a) the Veteran's service-connected residuals of low back injury with radiculopathy of the left and right lower extremities is considered one disability which is rated at 60 percent or more.  The Board notes that the Veteran is rated noncompensable for the service-connected right wrist ganglion cyst.  This is not a bar to meeting the schedular criteria.  In this regard, the Court upheld a finding that a Veteran with three service connected disabilities, resulting from a single accident and yielding a combined rating of 60 percent, to meet the schedular criteria set forth in 38 C.F.R. § 4.16(a) despite other unrelated service connected disabilities evaluated as noncompensable.  Gary v. Brown, 7 Vet. App. at 230 (1994).  Accordingly, the Veteran's service-connected residuals of low back injury with radiculopathy of the left and right lower extremities disabilities satisfies the schedular criteria for a TDIU, notwithstanding the noncompensable evaluation for right wrist ganglion cyst.  Id.; 38 C.F.R. § 4.16(a).  To find otherwise would lead to the absurd result that a Veteran with more than one service-connected disability is penalized in that he or she is required to have a combined disability rating of 70 percent while a Veteran with a single service-connected disability need only have a 60 percent rating.  See Sabonis v. Brown, 6 Vet. App. 426, 429 (1994) (stating that plain meaning of language of a statute must be given effect unless it would lead to absurd result). 

As the Veteran meets the schedular criteria, the remaining issue is whether the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.

In April 2008, he reported that he was unemployed.  He stated that he previously did very heavy work in construction and armored car driving, which included lifting heavy bags of coins.  

There is an unsigned May 2008 VA treatment record which states "In my opinion this pt is unemployable due to his spine condition and pain medications."   

The Veteran has not been able to secure or follow a substantially gainful occupation since approximately 2000.  The Veteran's level of education, to include a high school diploma through GED, and his specialized training/work experience is most congruent with a physically demanding occupation (e.g., construction).  See Memorandum from the Dir. Of Compensation and Pension, (August 30, 2011).  

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment." In this context, the Court cited the decision in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the claimant need not be a total "basket case" before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.

In addition, in Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a Veteran need not establish "100 percent unemployability" to prove his inability to maintain a "substantially gainful occupation."  The Federal Circuit declared,

Requiring a veteran to prove that he is 100 percent unemployable is different than requiring the veteran to prove that he cannot maintain substantially gainful employment.  The use of the word "substantially" suggests an intent to impart flexibility into a determination of the veterans overall employability, whereas a requirement that the veteran prove 100 percent unemployability leaves no flexibility.  While the term "substantially gainful occupation" may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.  Id. at 1385.

To be granted a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). 

Given the impact his service-connected disabilities have on his employability is within his personal observation, the Board finds that the Veteran's numerous statements on this matter to be competent and credible.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Moreover, the objective medical findings tend to corroborate his account of symptomatology.  

The May 2011 VA examiner opined that the Veteran's degenerative joint disease of the lumbar spine and cervical spine may make the Veteran unemployable for physical employment but it does not make him unemployable for sedentary employment.  In doing so, the examiner noted that the Veteran had an eighth grade education, earning a high school diploma through a GED (General Equivalency Degree).  Thus, to this extent, the Board finds the Veteran's account on this matter to provide competent, credible and highly probative evidence, tending to support the claim.  See also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (it is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). 

The Board finds the May 2011 VA examiner's opinion that the Veteran's degenerative joint disease of the lumbar spine may make the Veteran unemployable for physical employment, tending to weigh in favor of the claim, provides highly probative evidence in favor of the Veteran's claim.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

Conversely, the May 2011 VA examiner's opinion that the Veteran's degenerative joint disease of the lumbar spine does not make him unemployable for sedentary employment is of limited probative value, as the Board finds such tasks are not commensurate with his education, training and work experiences, in the construction industry.  

In July 2011, the RO requested that the Director of Compensation and Pension Service consider granting a TDIU on an extraschedular basis, citing the medical findings, stating that the Veteran had not been employed since 2000 and had an eighth grade education but had earned a GED.  The RO also noted that the Veteran was discharged from service due to his back disability.  Given the severity of the Veteran's back disability and in light of the fact that he had no history of working in sedentary positions and his level of education and training, the RO recommended that a TDIU be granted on an extraschedular basis under 38 C.F.R. § 4.16(b).

The Board acknowledges the August 2011 opinion of the Director of Compensation and Pension that the Veteran does not meet the schedular requirements for TDIU.  However, as discussed above, the Veteran does meet the schedular criteria for TDIU.  Therefore, the Board finds this August 2011 opinion of little, if any, probative value. 

In sum, the Board finds that the totality of the evidence, medical and lay, shows that the aggregate symptoms associated with the Veteran's service-connected residuals of low back injury with radiculopathy of the left and right lower extremities disabilities are of such a severity that he is rendered unable to secure or follow a substantially gainful occupation.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  Thus, resolving all reasonable doubt in his favor, the Board finds that the Veteran is entitled to TDIU benefits.


ORDER

A disability rating in excess of 20 percent for residuals of a low back injury for the period prior to August 13, 2008 is denied.  

Beginning August 13, 2008, an evaluation of 40 percent, but no higher, for residuals of a low back injury is granted, subject to the rules and regulations governing the payment of VA monetary benefits.  

For the appeal period prior to December 9, 2011, an evaluation of 10 percent, but no higher, for radiculopathy of the left lower extremity is granted, subject to the rules and regulations governing the payment of VA monetary benefits.  

From December 9, 2011, a disability rating in excess of 20 percent for radiculopathy of the left lower extremity is denied.  

For the appeal period prior to December 9, 2011, an evaluation of 10 percent, but no higher, for radiculopathy of the right lower extremity is granted, subject to the rules and regulations governing the payment of VA monetary benefits.  

From December 9, 2011, a disability rating in excess of 20 percent for radiculopathy of the right lower extremity is denied.  

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine, and applied it to award a staged rating.  However, as the preponderance of the evidence is otherwise against the Veteran's claim, the doctrine is not applicable.  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, 55-56 (1990).

A TDIU is granted, subject to the rules and regulations governing the payment of VA monetary benefits.  


REMAND

Service treatment records dated in April 1986 reflect that the Veteran had mild tenderness over the right tibia.  The Veteran was assessed with a probable stress fracture-resolving.  A Report of Medical Examination dated in January 1988 reflects that the Veteran's lower extremities were clinically evaluated as normal.   

The Veteran underwent a VA examination in December 2011.  The examiner opined that it is less likely as not that the left knee, left ankle, and left foot disabilities are related to military service.  The examiner did not specifically address whether a right knee disability is related to military service.  Such an opinion is necessary before a decision on the merits may be made.  

The Veteran has also claimed that his bilateral knee, left ankle, and left foot conditions are secondary to the service-connected back disability.  The Veteran underwent a VA examination in January 2010.  The examiner opined that he could not resolve the issue of service-connection of the left foot/ankle condition as secondary to a fall due to the lumbar spine condition without resorting to mere speculation.  The examiner stated that there is not enough information available to render an informed opinion.  The examiner did not specify what information would be required to render an informed opinion.  Such as opinion is not adequate because the rationale is insufficient, as it is cursory and fails to explain why there is not enough information available to render an informed opinion, as well as what information would be required to render an informed opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  Additionally, in Jones v. Shinseki, 23 Vet. App. 382 (2009), the Court held that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence.  Id. at 390.  When VA undertakes to provide a medical examination, that examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Here, because the examination is not adequate for the reasons stated above, a new examination must be scheduled for a thorough opinion on the likely etiology of the Veteran's left ankle and left foot disabilities.

The January 2010 examiner opined that the Veteran's left knee condition is less likely than not related to the Veteran's fall in July 2009 and is not related to the lumbar spine degenerative condition.  The examiner stated that there is nothing in the orthopedic literature indicating that a degenerative condition of the spine will cause a degenerative condition of a distal joint.  The Veteran underwent another VA examination in May 2010.  The examiner opined that it is less likely than not that the right knee disability is related to the service-connected lumbar disease.  The January 2010 VA examiner did not specifically address whether a left knee disability was aggravated by a back disability.  The May 2010 VA examiner did not specifically address whether a right knee disability was aggravated by a back disability.  Such opinions are necessary before a decision on the merits may be made.  

Lastly, relevant ongoing medical records should also be obtained.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following actions:

1.  Notify the Veteran that he may submit lay statements from himself as well as from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service bilateral knee, left ankle, and left foot symptomatology.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

2.  Obtain all records of the Veteran's treatment from the VA North Texas Health Care System (HCS) dated since August 2012 and incorporate them into the Veteran's claims file.

3.  Following the completion of the development above to the extent possible, schedule the Veteran for a VA examination.  The claims file must be reviewed by the examiner in conjunction with the examination.  Following examination of the Veteran and review of the claims folder and any relevant electronic VA treatment records, the examiner should respond to the following: 

a.  Is it at least as likely as not that the Veteran's left knee disability was aggravated (permanently increased in severity) by the Veteran's back disability?

b.  Is it at least as likely as not that the Veteran's left ankle disability was caused or aggravated (permanently increased in severity) by the Veteran's back disability?

c.  Is it at least as likely as not that the Veteran's left foot disability was caused or aggravated (permanently increased in severity) by the Veteran's back disability?

d.  Is it at least as likely as not that the Veteran's right knee disability arose during service or is etiologically related to the Veteran's military service, to include the Veteran's April 1986 mild tenderness over the right tibia?  If not, is it at least as likely as not that the Veteran's right knee disability was aggravated (permanently increased in severity) by the Veteran's back disability?  

The examiner should also address the significance of the normal service examination in 1988.  

The examiner must provide the reasoning for the opinions rendered.  An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).  As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge.

3.  After completion of the foregoing, readjudicate the claims for service connection for left and right knee, left ankle, and left foot disabilities.  If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case.  An appropriate period of time should be allowed for response.  Thereafter, the case should be returned to the Board, if in order. 

The appellant has the right to submit additional evidence and argument on the matters 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).



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs