Citation Nr: 1319441 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 07-21 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an evaluation in excess of 20 percent from March 31, 2006 to September 9, 2010, and in excess of 40 percent from September 9, 2010, for residuals of low back injury, to include herniated disc. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran had active military service from January 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A 10 percent rating was awarded for the Veteran's back disability from February 21, 2003. A 20 percent rating was thereafter assigned by a June 2007 decision, effective from March 31, 2006. By a September 2009 Board decision, the 10 percent rating from February 21, 2003, to March 31, 2006, was affirmed. The issue of the propriety of the rating from March 31, 2006, was remanded for further evidentiary development. The Board affirmed the 20 percent rating in a May 2010 decision. By way of a December 2010 order, the United States Court of Appeals for Veterans Claims (Court) vacated and remanded the May 2010 decision by the Board that had denied the Veteran's claim for a rating higher than 20 percent from March 31, 2006. The Court's order followed a Joint Motion for Remand (JMR). In March 2011, the Board remanded the case so that a VA examination could be scheduled. The requested examination was conducted in April 2011. Thereafter, the Veteran passed away on July 16, 2011. In August 2011, the appellant requested that she be substituted for the Veteran and allowed to continue the appeal. See Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (amending the law to allow substitution in cases involving claimants who die on or after October 10, 2008) (codified at 38 U.S.C.A. § 5121A (West Supp. 2012)). Such request must be filed not later than one year after the date of the veteran's death. Id. As provided in the law, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) . . . ." Id. The RO has allowed for the appellant's substitution in the Veteran's case. By a September 2012 rating decision, the RO granted service connection for radiculopathy of the right lower extremity, and assigned a 10 percent evaluation from April 9, 2011. By a September 2012 supplemental statement of the case (SSOC), the RO increased the evaluation for the Veteran's back disability to 40 percent, effective September 9, 2010. Given the award of a separate rating, and because there has been no appeal initiated with respect to the 10 percent rating for radiculopathy, the decision below addresses the low back disability rating without regard to the right lower extremity radiculopathy. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. From March 31, 2006 to September 9, 2010, the service-connected residuals of low back injury, to include herniated disc, were manifested by flexion of the thoracolumbar spine to 65 degrees, with no documented incapacitating episodes of intervertebral disc syndrome; there were no associated objective neurologic abnormalities for which a separate rating may be granted. 2. From September 9, 2010, the service-connected residuals of low back injury, to include herniated disc, were manifested by flexion of the thoracolumbar spine to 30 degrees, with no documented incapacitating episodes of intervertebral disc syndrome; there were no associated objective neurologic abnormalities other than the service-connected right lower extremity radiculopathy. CONCLUSIONS OF LAW 1. From March 31, 2006, to September 9, 2010, the criteria for an evaluation in excess of 20 percent for residuals of low back disability, to include herniated disc, were not met. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1 - 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5243 (2012). 2. From September 9, 2010, the criteria for a rating in excess of 40 percent for residuals of low back injury, to include herniated disc, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1 - 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The 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 & Supp. 2012); 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 representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where, as here with the claim for an initial compensable rating for the service-connected back disability, service connection has been granted, that claim is substantiated. No additional VCAA notice is required with respect to the downstream issue of the ratings assigned to the service-connected disability. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Because the appellant has been substituted for the Veteran, issuance of another VCAA notice letter is not required. See Veterans Benefits Administration Fast Letter 10-30 (Aug. 10, 2010). Even so, the appellant had a substantial role in the Veteran's prosecution of his claim. The appellant provided written arguments and otherwise has actual knowledge of the information and evidence necessary to substantiate the claim. Indeed, prior to the Veteran's death, the appellant submitted numerous statements on his behalf evidencing actual knowledge of the information and evidence necessary to substantiate the claim. Consequently, a remand for further notification of how to substantiate the claim is not necessary. Moreover, the Board finds that VA has complied with its duty to assist in the development of the claim. VA has obtained VA and private treatment records. Also, in July 2004, the RO requested copies of medical records from the Social Security Administration (SSA). Later that month, the RO was informed by SSA that the records were unavailable and had been destroyed. After a review of the claims file, the Board concludes that all known and available records relevant to the issue on appeal have been obtained and associated with the claims file. Indeed, the appellant has not contended otherwise. Additionally, pertinent VA examinations with respect to the issue on appeal were obtained in November 2006, May 2007, November 2009, September 2010, and April 2011. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examinations obtained in this case are sufficient, as they considered all of the pertinent evidence of record, including the statements of the Veteran, and provided explanations for the opinions stated as well as the medical information necessary to apply the appropriate rating criteria. The Board acknowledges the appellant's May 2009 statement wherein she claims that the November 2009 VA examiner did not perform any range-of-motion testing; however, the appellant admitted that she was not present during the entire examination. The Board finds that VA's duty to assist with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. See 38 C.F.R. § 3.159(c)(4). II. Claim for a Higher Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). In determining the degree of limitation of motion, several regulatory provisions are taken into consideration: the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. The Veteran's claim for a higher evaluation for his disability is an original claim that was placed in appellate status by a notice of disagreement (NOD) expressing disagreement with the initial rating award. As such, separate ratings can be assigned for separate periods of time based on the facts found--a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The appellant contends that her deceased husband was entitled to an initial rating in excess of 20 percent from March 31, 2006 to September 9, 2010, and in excess of 40 percent from September 9, 2010, due to the severity of his back symptomatology. In this case, the Veteran's disability caused limitation of motion of the lumbosacral spine. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made 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. Under the General Rating Formula, a 20 percent rating requires thoracolumbar spine forward flexion 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 warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a (2012). Note (1), which follows the rating criteria, provides for the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. In this regard, the Board acknowledges that the Veteran was currently service-connected for radiculopathy of the right lower extremity and that a 10 percent evaluation was assigned to this disorder. As the appellant has not raised a claim for a higher evaluation for this disability, any consideration of the matter is not appropriate at this time. IVDS is evaluated under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Id. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 20 percent rating is warranted for IVDS (preoperatively or postoperatively) when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. Note (1), which follows the rating criteria, indicates that for purposes of evaluations under 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. Id. The Board notes that at the time of the Veteran's 2006 VA examination, when the VA examiner opined that the radicular pain was definitely coming from the Veteran's back and arthritic disk, no neurologic testing was conducted. The VA examiner's assessment appears to have been based solely on the examination and the Veteran's subjective complaints of radicular pain. An August 2006 private opinion by D.D., M.D., also reported that the Veteran's low back pain had become more severe, and was in the middle of his low back radiating down to the right buttock and right posterior thigh. However, Dr. D.D. did not conduct any testing to evaluate the Veteran for neurologic abnormalities. At the May 2007 VA examination, the examiner noted that the Veteran had normal sensory and motor examinations. Flexion was to 50 degrees, extension was to zero degrees, lateral flexion was to 10 degrees bilaterally, and rotation was to 10 degrees bilaterally with pain throughout the range of motion. Repetitive use caused increased pain, tenderness, and fatigability; however, no change in range of motion was noted. The Veteran reported flare-ups with repetitive use. The examiner noted that there had been no incapacitating episodes. In a January 2008 statement from the Veteran, he noted that his condition had greatly deteriorated since his first application, noting that the pain in his back and leg had grown much worse, and that his doctor had increased the medication (Fentanyl Transdermal patch) from 50 to 75 mcg/h to help offset the degree of pain. A May 2008 from the Veteran's treating VA physician shows that there was flexion to 50 degrees, extension to 0 degrees, lateral flexion was to 10 degrees bilaterally, and rotation was to 10 degrees bilaterally with pain throughout the range of motion. Repetitive use caused increased pain, tenderness and fatigability; however, there was no change in range of motion. The Veteran reported flare-ups with repetitive use. Muscle spasm and tenderness were noted across the low lumbar area. Sensory and motor examinations were normal. There had been no incapacitating episodes in the previous year. A March 2009 private treatment record from the Midwest Pain Treatment Center shows that the Veteran complained of constant back pain that he rated 7-8/10. He also reported throbbing and stinging into the lower extremities, right worse than left. He denied cauda equine or myelopathic involvement. Steroid injections had provided transient relief. Upon physical examination, there was hypoesthesia in the median nerve distribution on the right (upper extremity). The remainder of the sensorimotor examination was nonfocal. The Veteran was normoreflexic. Long track signs were absent. Phalen's and reverse Phalen's were provocative on the right. Axial-loading maneuvers were provocative, left worse than right. Spurling maneuver was not provocative. The impression was right-sided median neuropathy and mechanical lumbar pain. In April 2009, it was noted that there was MRI evidence of lipomatosis at L2-3 and L3-4, and lumbar facet arthropathy at L4-5 and L5-S1. The diagnosis was lumbar spondylosis. Upon examination in May 2009, there was no focal deficit in the lower extremities. Strength testing was normal. Sensation to pin prick was intact from T-12 through S1. Further, during his July 2009 Board hearing, the Veteran stated that his back had grown gradually worse until May 2009 when he went to see a private pain doctor. See Hearing Transcript at 4. During a November 2009 VA examination, the Veteran reportedly was unable to do any prolonged standing or repetitive bending or lifting. He used a back brace and a walker. He complained of a dull, aching, throbbing pain in his tailbone, and noted that sometimes the pain extended from the tailbone region to the right thigh. The Veteran denied paresthesia and sensory deficits in either leg. Flexion was to 65 degrees, extension was to zero degrees, lateral flexion was to 15 degrees bilaterally, and rotation was to 15 degrees bilaterally. There was no change after repetitive testing. No flare-ups were noted. There was painful motion, spasm, and tenderness across the lumbar spine. The VA examiner reported that the Veteran had denied deficits such as numbness, tingling, burning or a prickly sensation down either leg, and noted that on motor examination the Veteran had +5/5 hip flexion/extension and +5/5 muscle strength in the dorsal as well as plantar flexion of the feet. A sensory examination revealed no abnormal findings to pin prick or vibration in either leg. There was positive straight leg raising in the seated position on both legs at 20 degrees bilaterally. Deep tendon reflexes were +2/4 in both knees and +1/4 in both ankles. Based on this examination, the VA examiner stated that the Veteran suffered from chronic low back pain. The examiner noted that the radiation of pain from the coccygeal region to the thigh was consistent with his pathology of degenerative disc disease at multiple levels and spinal canal stenosis, however, no particular nerve or nerve root appeared to be involved. In summary, the examiner concluded that there were no neurological symptoms identified that were related to the Veteran's low back disability. The examiner noted that functional losses due to pain were likely contributed to by the Veteran's moderate to severe spinal stenosis, but the examiner could not comment on weakness or fatigability, noting that there were "other non-neurological factors which could be contributory." The examiner reviewed the file and found no current recommendation of prescribed bed rest due to the Veteran's back disability. He also determined that the Veteran was capable of sedentary work. A September 2010 VA examination report shows that the Veteran was considered to be a fall risk. He ambulated with a walker. He had difficulty arising from a sitting position without using his walker. He walked with a slumped over gait using his walker for support. There was weakness of the lower legs, but no muscle atrophy. There was also lack of coordination with ambulating secondary to severe spinal stenosis. There were deficits with weight-bearing balance and propulsion. Range-of-motion testing included flexion to 30 degrees, extension to zero degrees, lateral flexion to 10 degrees bilaterally, and rotation to 10 degrees bilaterally. Repetitive testing resulted in increased pain and radiculopathy of the right lower extremity, which caused weakness. The Veteran was able to walk 150 feet, but had to use either a cane or a walker. He denied any bladder or bowel incontinence. The Veteran submitted to an April 2011 VA examination report for purposes of evaluating radiculopathy of the lower extremities. He complained of pain 50-60 percent of the time. There was no specific leg weakness or numbness, but he had to grab both rails when climbing stairs and it was difficult for him to get out of a chair. The pain was 6-7/10 without medication and 3-4/10 with either a Fentanyl patch or Tylenol extra strength. A back brace also helped. There was no pain on straight leg raising on the left side. There was mild discomfort on internal and external rotation of the hips. Lower extremity motor function of the left leg was normal. Sensation was normal on the left side except for diminished vibration sense from the lower one-third of the shin. Patellar reflex was 2/4 on the left and ankle jerk was 1/4 on the left. There was diminished muscle bulk on the left side, which the examiner felt was due to the Veteran's recent hospitalization for COPD and deconditioning. Gait was wide-based with short steps, stooping forward of the upper body, and eversion of both feet. No footdrop was noted. Based on a review of the claims file, the Board finds that no examination reflects that the Veteran's low back disability resulted in forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, at any time from March 31, 2006 to September 9, 2010. Specifically, the May 2007 and May 2008 VA examinations noted forward flexion to 50 degrees (40 degrees short of full range of motion), and the November 2009 VA examination noted flexion to 65 degrees (only 25 degrees short of full range of flexion). See 38 C.F.R. § 4.71a, Plate V. Further, none of the examiners stated that there was evidence of ankylosis of the thoracolumbar spine, either favorable or unfavorable. Thus, the Board finds that, from March 31, 2006 to September 9, 2010, the criteria for an evaluation greater than 20 percent were not met. The Board also finds that assignment of a disability evaluation in excess of 40 percent from September 9, 2010, is not warranted because there is no evidence of ankylosis of the spine and there is no evidence of incapacitating episodes requiring prescribed bed rest during this time period. The Veteran's pertinent VA treatment records since the date of the award of service connection reflect his complaints of lumbar spine pain. They do not show any incapacitating episodes as defined by VA. The May 2007 VA examiner specifically noted that there had been no incapacitating episodes in the previous year. The November 2009 VA examiner stated that there was no incapacitation caused by his back disability, and noted that he was unaware of any current recommendation that the Veteran follow specifically prescribed bed rest due to the low back disability. There is no medical evidence during the period in question showing periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician. See 38 C.F.R. § 4.71a, DC 5243, Note (1). Rather, VA treatment records reflect that the Veteran's on-going back pain was somewhat alleviated by prescription medication and a back brace. Whether the Veteran's back disability results in functional loss has also been reviewed with respect to both periods in question. See 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). It is not disputed that the Veteran had limitation of motion of the thoracolumbar segment of his spine and that there was chronic back pain. The May 2007 and May 2008 VA examiners noted objective evidence of pain during range-of-motion testing. However, those measured ranges of motion were in excess of the benchmarks required for higher ratings, even when considering functional impairment due to pain. In addition, pain during range-of-motion testing was not noted by any of the other VA examiners. The September 2010 examiner noted wasting of the muscle bulk of the lower extremities, but attributed this problem to the Veteran's recent hospitalization for COPD and deconditioning. There was no weakness noted during the April 2011 examination, which was conducted just a few months prior to the Veteran's death. Accordingly, the evidence does not support a higher evaluation on the basis of functional loss for any time since March 31, 2006. Except for the service-connected radiculopathy of the right lower extremity, the evidence does not show objective neurological manifestations for which separate ratings can be granted. Specifically, sensory and motor examinations have repeatedly been normal except for a finding of diminished vibration sense in the lower one-third of the left shin in April 2011. Further, at the November 2009 VA examination, although the Veteran complained of a dull, aching throbbing pain in his tailbone, and noted that the pain sometimes extended to the right thigh, he denied deficits such as numbness, tingling, burning or a prickly sensation down either leg. The examiner concluded that there were no neurological symptoms identified which were related to the Veteran's low back disability. Left ankle jerk was 1/4 at the November 2009 and April 2011 VA examinations. However, no examiner has found evidence of sensory loss, muscle weakness, or diminished reflexes involving the S2 nerve root. Thus, there is no evidence of radiculopathy of the left lower extremity. Nor is there evidence of bladder and/or bowel dysfunction. Accordingly, with the exception of the rating already assigned for right lower extremity radiculopathy, the evidence does not support separate ratings for neurologic manifestations during either time period in question. Consideration has also been given to whether the schedular evaluations are inadequate, requiring that VA refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The schedular evaluations in this case are adequate. Ratings in excess of those assigned are provided for certain manifestations of the service-connected disorder, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability. The Veteran did not require hospitalization because of his back disability during the period in question. The Veteran repeatedly complained that his back disability affected his ability to perform household chores and his ability to walk, and he required the use of a walker. Nevertheless, the Board finds that these problems do not present exceptional or unusual symptoms. The Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. Last, an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered. In this case, at the time of the Veteran's death there was no evidence of unemployability due to his back. In fact, the November 2009 VA examiner determined that the Veteran was capable of sedentary work. Therefore, a claim based on unemployability due to the back disability was not raised by the record. The preponderance of the evidence is against the claim for a higher rating. There is no doubt to be resolved. Accordingly, an increased evaluation for residuals of low back injury, to include herniated disc, beyond the ratings already assigned since March 31, 2006, is not warranted. ORDER An evaluation for residuals of low back injury, to include herniated disc, in excess of 20 percent from March 31, 2006 to September 9, 2010, and in excess of 40 percent from September 9, 2010, is denied. _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs