Citation Nr: 1321985 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-01 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine, to include consideration of separate rating(s) for neurological impairment. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1976 to September 1979 and from January 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, increased the evaluation of the Veteran's lumbar spine disorder from 0 percent to 10 percent disabling, effective June 25, 2008. The issues of entitlement to service connection for diabetes mellitus and hypertension have been raised by the record, but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's lumbar spine disability is manifested by forward flexion limited by pain to no worse than 75 degrees and a combined range of motion of greater than 120 degrees; the Veteran has not shown muscle spasm or guarding resulting in an abnormal gait or spinal contour, ankylosis, or incapacitating episodes. 2. The Veteran's neurological impairment is manifested by symptoms that are no more than slight in severity. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242. 2. The criteria for a compensable disability rating for neurological impairment associated with the Veteran's lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA also defines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). When VA receives a complete or substantially complete application for benefits, it must notify the veteran of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the veteran is expected to provide. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2012); Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Prior to the initial adjudication of the Veteran's claim, a letter dated July 2008 was sent to the Veteran in accordance with the duty to notify. 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This letter informed the Veteran of information and evidence necessary to substantiate the claim, information and evidence that VA would seek to obtain, information and evidence that the Veteran was expected to provide, and information regarding the process by which initial disability ratings and effective dates are established. The Board finds that the notice requirements have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran's service treatment records and post-service VA treatment records have been obtained, to the extent available. The Veteran has been provided with VA examinations. Upon review of these examination reports, the Board observes that the examiners reviewed the Veteran's claims file and past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Veteran declined the opportunity to present testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). When 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. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2012). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding-the evaluation of the same manifestation of a disability under different diagnostic codes-is to be avoided when rating a veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2012). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See 38 C.F.R. § 4.40 (2012). When making a rating determination, VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45 (2012); Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's lumbar spine condition is currently evaluated under Diagnostic Code 5242, which is applicable to degenerative arthritis of the spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). This Diagnostic Code refers to Diagnostic Code 5003, which applies generally to degenerative arthritis and provides that arthritis of a major joint is to be rated under the criteria for limitation of motion of the affected joint. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). When limitation of motion of the joint is noncompensable under the appropriate diagnostic codes, a rating of 10 percent applies. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Spine disabilities are otherwise evaluated under either 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 results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2012). The Board has evaluated the Veteran's spine disorder under multiple diagnostic codes to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of the veteran's ability to engage in ordinary activities, including employment, as well as an assessment of the effect of pain on those activities. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012). The General Rating Formula for Diseases and Injuries of the Spine provides for the following ratings for lumbar spine disabilities, in pertinent part: 10 percent: Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 20 percent: Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 40 percent: Forward flexion of the thoracolumbar spine to 30 degrees; or, less; or, favorable ankylosis of the entire thoracolumbar spine. 50 percent: Unfavorable ankylosis of the entire thoracolumbar spine. 100 percent: Unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). The following ratings apply to intervertebral disc syndrome based on incapacitating episodes, in pertinent part: 10 percent: Incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 20 percent: Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 40 percent: Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 60 percent: Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1 (2012). As will be noted in further detail below, higher ratings are not available to the Veteran under the criteria applicable to incapacitating episodes because no such episodes have ever been demonstrated. The normal range of motion for the thoracolumbar spine is as follows: forward flexion of 0 to 90 degrees, extension of 0 to 30 degrees, left and right lateral flexion of 0 to 30 degrees, and left and right lateral rotation of 0 to 30 degrees. The normal combined range of motion of the thoracolumbar spine (the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation) is 240 degrees. When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). Turning first to orthopedic manifestations of the Veteran's disability, in July 2008, the Veteran complained of low back pain. The Veteran indicated that while his pain was generally mild and persisted for most of the day, his pain became debilitating when he engaged in activity such as lifting heavy weights. After such activity, the Veteran required bed rest for a number of days. In August 2008, the Veteran stated that he occasionally experienced back pain that prevented him from getting out of bed. The Veteran underwent an examination for VA compensation and pension purposes in August 2008. The Veteran reported experiencing pain, stiffness, weakness, and numbness. The Veteran experienced pain in his low back approximately four times monthly, with each painful episode lasting for about three days. The back pain was aching, sharp, and it traveled to his legs. The Veteran reported that on a scale from 1 to 10, his pain level was a 9. The Veteran was not receiving treatment for his condition, and he could function with medication. The Veteran denied experiencing any incapacitating episodes. During flare-ups, the Veteran could not stand up straight without assistance due to pain and stiffness. Upon physical examination, the Veteran's head position was normal and symmetrical. Spinal motion and curvature were normal. Muscle spasm was absent, and no tenderness was noted. Straight leg raising tests were negative, and there was no ankylosis of the lumbar spine. The Veteran had flexion to 90 degrees, extension to 30 degrees (22 degrees with pain), bilateral lateral flexion to 30 degrees, right rotation to 30 degrees (12 degrees with pain), and left rotation to 30 degrees (14 degrees with pain). The Veteran was functionally limited by pain upon repetitive use testing. In October 2008, the Veteran complained of dull, aching pain in his back. The Veteran experienced pain frequently, and cold weather, waking up in the morning, and heavy exertion worsened the pain. Mild activity and over-the-counter pain medications lessened his pain. In November 2008, the Veteran underwent a right L3-L5 medial branch block to treat his lumbar facet joint arthrosis. In April 2009, a friend submitted a statement indicating that the Veteran occasionally could not get out of bed without help. The friend indicated that the Veteran sometimes experienced shooting pain down his legs that "almost paralyzed" him. In December 2009, the Veteran stated that he had undergone several spinal injections to relieve his pain. At a September 2012 VA examination, the examiner diagnosed the Veteran with osteoarthritis of the lumbar spine and chronic thoracolumbar strain. The Veteran reported experiencing flare-ups, and he indicated that he had trouble getting off the floor when working. The Veteran complained that he sometimes became so stiff that it hurt to turn from side to side. The Veteran indicated that when he bent over, "his legs don't want to hold him." If the Veteran lifted 50 pounds or more, he experienced pain that caused difficulty getting out of bed. The Veteran had forward flexion to 90 degrees or greater, with pain at 75 degrees. The Veteran had extension to 30 degrees or greater, with pain at 25 degrees. The Veteran had right lateral flexion to 30 degrees or greater, with pain at 15 degrees. The Veteran had left lateral flexion to 30 degrees or greater, with pain at 20 degrees. The Veteran had right lateral rotation to 30 degrees or greater, with pain at 15 degrees. The Veteran had left lateral rotation to 30 degrees or greater, with pain at 10 degrees. The Veteran's ranges of motion were the same after three repetitions; the examiner noted that repeated motion caused the Veteran to experience pain, but no other functional loss. The examiner noted that the Veteran had localized tenderness or pain to palpation for joints and soft tissue of the thoracolumbar spine. The Veteran had guarding and muscle spasm, but these symptoms did not result in an abnormal gait or spinal contour. The Veteran did not have intervertebral disc syndrome. Applying the relevant rating criteria to the facts in the instant case, the Board observes that the Veteran has never been diagnosed with ankylosis, nor have his symptoms closely approximated ankylosis or immobility. On the contrary, the record shows that the Veteran has maintained limited motion in the thoracolumbar spine throughout the course of the appeal. A rating of 50 percent or greater is therefore unwarranted at any time under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). A 40 percent evaluation is similarly unwarranted because forward flexion of the thoracolumbar spine has never been limited to 30 degrees or less, even taking into account functional limitations. With regard to a 20 percent evaluation, the Veteran has not demonstrated forward flexion of the thoracolumbar spine of 60 degrees or less, even taking into account functional limitations. The combined range of motion of the thoracolumbar spine in both August 2008 and September 2012, even taking pain into consideration, was greater than 120 degrees. Lastly, the Veteran has not shown muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. For these reasons, a 20 percent evaluation is not warranted for the Veteran's low back disorder. In reviewing the evidence, the Board considered functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. See 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has considered the effects of weakened movement, excess fatigability, and incoordination. See 38 C.F.R. § 4.45 (2012). Although the Board accepts the Veteran's competent and credible assertions that his spine disability causes him to experience pain, the Board has taken this into account in its above discussion of range of motion. The rating schedule does not require a separate rating for pain itself. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Furthermore, even when the Veteran's complaints of pain are considered, the Board concludes that the overall manifestations of his lumbar spine disability generally do not demonstrate a degree of functional loss akin to the above-listed criteria associated with a disability rating of 20 percent or greater. With regard to a greater rating based on intervertebral disc syndrome, the Veteran has not been diagnosed with intervertebral disc syndrome, and the evidence of record does not suggest that the Veteran has suffered from incapacitating episodes. The term "incapacitating episode" means a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. The Board acknowledges the Veteran's contentions that he suffers from episodes that require bed rest: the Veteran has described periods when he experienced pain of such severity that he needed to lie down for relief. While the Board accepts the Veteran's contention that his condition causes him pain that requires him to lie down, the evidence does not suggest that the periods of bed rest have been prescribed by a physician. Without physician-prescribed periods of bed rest associated with intervertebral disc syndrome, the Veteran is not entitled to a greater rating based on incapacitating episodes. In sum, the Board finds that the orthopedic manifestations of the Veteran's lumbar spine disability do not warrant a rating in excess of 10 percent at any time. Turning next to neurological manifestations, the Veteran is not currently in receipt of a separate rating for the neurological manifestations of his lumbar spine disability. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The rating schedule does not define the terms mild, moderate, or severe as used in the diagnostic codes. Instead, adjudicators must evaluate all of the evidence and render a decision that is equitable and just. 38 C.F.R. § 4.6 (2012). Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Disability ratings of 10 percent, 20 percent and 40 percent are assigned for incomplete paralysis that is mild, moderate, or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Complete paralysis of the sciatic nerve is rated 80 percent and contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). In July 2008, the Veteran complained of bilateral sciatica. The Veteran had not experienced any falls, and he did not complain of bowel or bladder incontinence. In August 2008, an examiner observed no evidence of radiating pain with movement. The Veteran's rectal, genital, and neurological testing were all normal. In October 2008, the Veteran complained of radiating pain in his legs. In September 2012, muscle strength testing, reflex testing, and sensory testing were all normal. Straight leg raising testing was normal bilaterally. The Veteran complained of no radicular pain or other symptoms due to radiculopathy. The Veteran had no other neurologic abnormalities. The Board finds that the Veteran's neurological manifestations do not rise to the level of mild severity. While the Board acknowledges the Veteran's contentions that he occasionally experiences pain in his lower extremities, clinical findings have consistently failed to demonstrate symptoms approximating mild incomplete paralysis. Sensory testing has been consistently normal and straight leg raising has been negative. The Board finds that the complaints are wholly subjective and do not rise to the level of mild incomplete paralysis. Therefore, the Board finds that a compensable rating for the neurological manifestations associated with the Veteran's lumbar spine disability is unavailable. The Board has considered whether a higher rating might be warranted for any time during the pendency of this appeal. However, the weight of the credible evidence demonstrates that the orthopedic manifestations of the Veteran's lumbar spine disability warrant no more than a 10 percent rating, and the neurological manifestations of the Veteran's lumbar spine disability do not warrant a compensable rating. All reasonable doubt has been resolved in favor of the veteran in making this decision. The preponderance of the evidence is against the assignment of any higher ratings. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-schedular Considerations In addition, the Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors that render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In Thun v. Peake, the United States Court of Appeals for Veterans Claims (Court) set forth a three-step inquiry to determine a veteran's entitlement to an extra-schedular rating. See 22 Vet. App. 111 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found to be inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extra-schedular rating. In this case, it is not necessary to go any further than the first step of the Thun analysis. The rating criteria are not inadequate, and it does not appear that the Veteran has "exceptional or unusual" disabilities; he merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected spine condition that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations are adequate. Referral for extra-schedular consideration is not warranted. Further inquiry into extra-schedular consideration is moot. See Thun, supra. The Board also notes that the Court has held that the issue of a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when a request for TDIU is reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). However, in the present case, the Veteran has not explicitly raised the issue of TDIU. Likewise, the record does not reasonably raise the issue of TDIU. In August 2008, the Veteran stated that he was missing work with more frequency as a result of his back disorder. The Veteran was employed as a mechanic at that time. In April 2009, the Veteran's employer indicated that the Veteran's job performance was "very good." In September 2012, an examiner noted that the Veteran's lumbar spine disorder presented a partial impairment on his ability to engage in physical activities such as lifting, pushing, and pulling. The Veteran reported that he was working at that time. The Board thus finds that the evidence of record does not suggest either that the Veteran is unemployed or generally unemployable. In light of the foregoing, the Board finds that entitlement to TDIU has not been raised. ORDER A disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine, to include separate rating(s) for neurological impairment, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs