Citation Nr: 1320499 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 07-31 366A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for degenerative disc disease of the lumbar spine before December 17, 2010, 2. Entitlement to an initial rating higher than 20 percent for degenerative disc disease of the lumbar spine from December 17, 2010. 3. Entitlement to extraschedular rating for degenerative disc disease of the lumbar spine. 4. Entitlement to a total disability rating for compensation based on individual unemployability on an extraschedular basis. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1967 to August 1971 and from February 1972 to March 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). While on appeal in a rating decision in July 2012, the RO increased the rating for degenerative disc disease of the lumbar spine to 20 percent from December 17, 2010. The RO also assigned separate ratings of 10 percent for radiculopathy of each lower extremity from May 19, 2012. After the Veteran was notified of the separate ratings for radiculopathy of each lower extremity and of his right to appeal the Veteran has not appealed the 10 percent ratings and the ratings have not been developed for appellate review by the Board. In March 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is the Veteran's file. A staged rating higher than 20 percent for degenerative disc disease of the lumbar spine from December 17, 2010, and an extraschedular rating for degenerative disc disease of the lumbar spine and the claim for a total disability rating for compensation based on individual unemployability on an extraschedular basis are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT Before December 17, 2010, degenerative disc disease of the lumbar spine was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees; and a combined range of motion of the thoracolumbar spine greater than 120 degrees with a normal gait and normal spine contour without objective neurological abnormality or incapacitating episodes having a total duration of at least two weeks, but less than 4 weeks during a 12-month period. CONCLUSION OF LAW Before December 17, 2010, the criteria for an initial rating higher than 10 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5242. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter dated in October 2005 on the underlying claim of service connection for degenerative disc disease of the lumbar spine. Where, as here, service connection has been granted and the initial ratings have been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher ratings. Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, private medical records, and records of the Social Security Administration. The Veteran was afforded a VA examination in February 2006. As the report of the VA examination was e based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examination is adequate to rate the disability. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles for Rating Disabilities A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system included functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Vertebrae are considered groups of joints. As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include excess fatigability, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Criteria for Rating Degenerative Disc Disease of the Lumbar Spine Before December 17, 2010, degenerative disc disease of the lumbar spine was rated 10 percent under Diagnostic Code 5242. Degenerative disc disease or intervertebral disc syndrome is rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The criteria for rating a disability of the spine are for application with or without symptoms such as pain and whether or not it radiates, stiffness, or aching in the area of the spine affected. Under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for a 20 percent rating are forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. For the purpose of VA compensation, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Plate V, 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months is rated 20 percent. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Note 1, following the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Facts Private medical records show that in November 2000 the Veteran had surgery for a herniated disc at L4-L5 with nerve compression. In May 2003, the Veteran had a laminectomy decompression at L4. In February 2005, the Veteran denied leg or foot pain. Lumbar flexion was to 72 degrees with 34 degrees of sacral flexion and lumbar extension was to 20 degrees with 8 degrees of sacral extension. It was reported that the lumbar and sacral flexion translated to 38 degrees of flexion and the lumbar and sacral extension translated to 12 degrees of extension. Lateral flexion to the left was 32 degrees and to the right 14 degrees. In March 2005, X-rays showed arthritis in the lumbar spine. In March 2005, the Veteran was awarded disability benefits from the Social Security Administration due to discogenic and degenerative disease of the back and pulmonary insufficiency, effective from July 2004. On VA examination in February 2006, the Veteran described constant low back pain since 1972 that was elicited with physical activity, which was relieved with medication. The Veteran stated that his condition did not cause incapacitation or time lost from work. Functional impairment included limited walking and prolonged standing. On physical examination, the Veteran's posture and gait were normal without the need for an assistive device. The Veteran complained of radiating pain on movement of the legs. There was no muscle spasm. There was tenderness. The straight leg raising test was positive, bilaterally. There was no ankylosis. For range of motion, flexion was to 90 degrees, extension was to 30 degrees, lateral flexion, left and right, was to 30 degrees, and rotation, left and right, was to 30 degrees. Range of motion was associated with pain. The combined range of motion (90+30+30+30+30+30 = 240) was 240 degrees. The VA examiner stated that function of the spine was additionally limited by pain with repetition, but was not limited by fatigue, weakness, lack of endurance, or incoordination. The VA examiner stated that he was unable to make a determination on whether pain, fatigue, weakness, lack of endurance, or incoordination limited joint function in degrees. There were no signs of intervertebral disc syndrome. On neurological evaluation motor and sensory functions were within normal limits. The reflexes in the lower extremities were 2+. X-rays showed advanced degenerative disc disease of the L4-L5 vertebrae. Private medical records from August 2004 to August 2010 show: a stable back following surgery (August 2004), no evidence of motor or sensory deficit (August to December 2004, January 2005, February 2005, August 2005, October 2005, February and April 2006, January 2007, April 2008, September 2009, and March and August 2010), full range of motion and no back or leg pain (February 2005, August 2005, October 2005, February and April 2006, January 2007, April 2008, September 2009, and March and August 2010). Analysis Before December 17, 2010, based on the applicable criteria for limitation of motion, and the findings on VA examination in February 2006 the Veteran did not meet the criteria for the next higher percent rating, 20 percent, under the General Rating Formula for Diseases and Injuries of the Spine, as limitation of forward flexion, including functional loss, was to 90 degrees and 90 degrees of forward flexion does not more nearly approximate or equate to forward flexion to 60 degrees or less, the criterion for the next higher rating for limitation of forward flexion, and the combined range of motion of 240 degrees does not more nearly approximate or equate to a combined rating of 120 degrees or less, considering functional loss due to pain of painful movement, weakness, atrophy, swelling, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing under 38 C.F.R. §§ 4.40 , 4.45, 4.59, and repetitive motion. Although the VA examiner was unable to make a determination on whether pain, fatigue, weakness, lack of endurance, or incoordination limited function in additional degrees of limitation of motion without speculation, the finding does not raise reasonable doubt, because there was not an approximate balance of positive and negative evidence on the question of additional functional loss. 38 C.F.R. § 3.102. Although private medical records in February 2005 included range of motion testing, the findings were inadequate to rate the disability under General Rating Formula for Diseases and Injuries of the Spine and as the findings were a combination of flexion and extension of the service-connected lumbar spine and the nonservice-connected sacral spine. Moreover, standing alone the finding of lumbar flexion to 72 degrees did not more nearly approximate or equate to forward flexion to 60 degrees or less, the criterion for the next higher rating for limitation of forward flexion. And the remaining range of motion findings for extension and lateral flexion did not include rotation so that the evidence is inadequate to rate on the basis of the combined range of motion. The 10 percent rating was the minimum compensable rating for the lumbar spine. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (painful motion under 38 C.F.R. § 4.59 does not require arthritis for a minimum rating for the specific joint). While the Veteran experienced back pain with range of motion, the back pain did not rise to the level of the criteria for the next higher rating. See Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). Also there were no muscle spasm or guarding of movement severe enough to result in an abnormal gait or spinal contour and the criteria for the next higher rating, considering muscle spasm or guarding of movement have not been. As for a separate rating for objective neurological abnormalities, there were no signs of intervertebral disc syndrome or nerve root involvement as the neurological examination of the lower extremities showed normal motor and sensory functions and the reflexes of the lower extremities were 2+. As for incapacitating episodes, incapacitating episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician, having a total duration of at least 2 weeks but less than 4 weeks during a 12 month period were not shown. While the Veteran is competent describe back symptoms, the Board places greater weight on the examination findings than the Veteran's subjective complaints. In summary, the criteria for rating higher than 10 percent before December 17, 2010, were not met. The Board has considered whether a "staged" rating before December 17, 2010, was appropriate, but concludes that the evidence does not show that degenerative disc disease of the lumbar spine met the criteria for a higher rating before December 17, 2010. As the preponderance of the evidence is against the claim for a rating than 10 percent before December 17, 2010, the benefit-of-the-doubt standard does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such ratings. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is therefore adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008) aff'd Thun v. Shinseki, 572 3d 1366 (Fed. Cir. 2009). Before December 17, 2010, the Board finds that the rating criteria reasonably describe the Veteran's symptomatology, namely, limitation of motion and functional loss. In other words, the Veteran does not have symptomatology not already encompassed in the Rating Schedule, and the assigned schedular rating for the degenerative disc disease of the lumbar was adequate. Therefore, referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) before December 17, 2010, is not warranted. A Total Disability Rating for Compensation based on Individual Unemployability The claim for a total disability rating on the basis of individual unemployability on an extraschedular basis raised by the Veteran is remanded. ORDER Before December 17, 2010, an initial rating higher than 10 percent for degenerative disc disease of the lumbar spine is denied. REMAND In June 2011, in accordance with 38 C.F.R. § 4.16(b), the RO referred the claim for a total disability rating for compensation based on individual unemployability on an extraschedular basis to the VA Director of the Compensation Service. In July 2011, VA Director of the Compensation Service returned the Veteran's file to the RO to obtain records of the Social Security Administration and then requested that the Veteran's file be returned when the records were received. The RO subsequently obtained the records, but the Veteran's file has not yet been returned to VA Director of the Compensation Service, and further development is needed. In March 2013, at his hearing, the Veteran stated that after he was last examined by VA in May 2012 the disability of the lumbar spine had increased in severity. The Veteran also raised the claim for an extraschedular rating for degenerative disc disease of the lumbar spine. As the evidence of record is either insufficient or incomplete on the remaining claims, the claims are REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the current severity of the service-connected degenerative disc disease of the lumbar spine. The VA examiner is asked to describe: a). Range of motion of the lumbar spine in degrees of forward flexion and any additional functional loss due to pain, painful movement, weakened movement, fatigue, or repetitive movement; b). Any objective neurological abnormalities of the lumbar spine; and, c). Any incapacitating episodes necessitating bed rest and treatment by a physician, and if so, the duration of the episodes. The Veteran's file must be made available to the VA examiner. 2. After the development is completed, adjudicate the claim for rating higher than 20 percent for degenerative disc disease of the lumbar spine since December 17, 2010. And then refer the claim for an extraschedular rating for a disability of the lumbar spine under 38 C.F.R. § 3.321(b) since December 17, 2010, and the claim for a total disability rating for compensation based on individual unemployability on an extraschedular basis under 38 C.F.R. § 4.16(b) to the VA Director of the Compensation Service. If any benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs