Citation Nr: 1322706 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-21 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating higher than 20 percent for lumbar degenerative disc disease before September 17, 2012, and a rating higher than 40 percent from September 17, 2012. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to October 1966. In September 2007, the Veteran withdrew his notice of disagreement to a rating decision in August 2007, continuing the 10 percent rating lumbar degenerative disc disease, which was reduced to a written communication. 38 C.F.R. § 20.201. The RO construed the communication as a new claim for increase. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In the rating decision, the RO increased the rating to 20 percent, effective from the date of the new claim for increase, September 4, 2007. While on appeal, in a rating decision in November 2012, the RO increased the rating to 40 percent, effective September 17, 2012. In the rating decision in November 2012, the RO assigned a separate 20 percent rating for right lower extremity radiculopathy and a separate 10 percent rating for left lower extremity radiculopathy, both effective September 17, 2012. The separate ratings have not been appealed and the Veteran has the remainder of the one-year period for the date of the notice of the rating decision to initiate an appeal. In May 2013, the Veteran withdrew his request for a hearing before the Board. He also submitted additional evidence without a waiver of initial consideration of the evidence by RO. As the evidence is a copy of the report of VA examination in September 2012, which is already in the record, the evidence need not be referred to the RO. 38 C.F.R. § 20.1304. The claim for a total disability rating for compensation based on individual unemployability is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. Before January 27, 2010, lumbar degenerative disc disease was characterized by forward flexion that more nearly approximated flexion to 30 degrees or less without evidence of ankylosis or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. From January 6, 2010, to September 17, 2012, there is mild incomplete paralysis of the sciatic nerve in the right lower extremity, but not in the left lower extremity. 3. From January 27, 2010, and currently, lumbar degenerative disc disease is characterized by forward flexion to 30 degrees or less and no evidence of ankylosis or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. CONCLUSIONS OF LAW 1. Before January 27, 2010, the criteria for a rating higher than 20 percent for lumbar degenerative disc disease have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243 (effective as of September 26, 2003). 2. From January 27, 2010, to September 17, 2012, the criteria for a 40 percent rating for lumbar degenerative disc disease have been met; from January 27, 2010, and currently, the criteria for a rating higher than 40 percent rating for lumbar degenerative disc disease have not been met. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243 (effective as of September 26, 2003). 3. From January 6, 2010, to September 17, 2012, the criteria for a separate rating for mild incomplete paralysis of the sciatic nerve in the right lower extremity were met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5243 and Diagnostic Code 8520. 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 Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). 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 RO provided pre-adjudication VCAA notice by letter dated in January 2008. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); and of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment.). 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 obtained VA medical records The Veteran was afforded VA examinations in July 2007, in October 2007, in January 2010, and in September 2012. On VA examination in July 2007, the Veteran declined testing for range of motion, because he thought it would bring on muscle spasms. As the examination is inconclusive as to range of motion, the findings are not adequate to rate the disability. The examinations in October 2007, in January 2010, and in September 2012 are adequate to decide the claim, because the Veteran's history was considered and the disability is described in sufficient detail so that the Board's review is a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) The Veteran has not identified any additional evidence pertinent to the claim. As there are no additional records to obtain, 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 FINDINGS AND CONCLUSIONS General Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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 the residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C.A. § 5107(b). Factors for Rating a Disability of the Musculoskeletal System 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. Rating Lumbar Degenerative Disc Disease Lumbar degenerative disc disease is rated under Diagnostic Code 5243. During the course of the appeal the RO increased the rating to 20 percent, effective from September 4, 2007, and then to 40 percent, effective September 17, 2012. Effective September 26, 2003, the schedule for rating disabilities of the spine was revised. Under the revised and current criteria, degenerative disc disease or intervertebral disc syndrome is rated either 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, Diagnostic Code 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for 40 percent are forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension. 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. In rating peripheral nerves in the lower extremities, the rating schedule provides a 10 percent rating for mild incomplete paralysis and a 20 percent rating for moderate incomplete paralysis, depending on the particular nerve or nerve group of the lower extremity that is affected. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months is rated 40 percent. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months is rated 60 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. Rating Lumbar Degenerative Disc Disease before September 17, 2012 On VA examination in July 2007. The Veteran complained of constant pain in the lumbar spine and flare-ups from 3 days to 3 weeks, during which he required assistance with activities of daily living. The Veteran described the pain as radiating down to the lower extremities. The Veteran used a cane for walking short distances and a wheelchair for longer distances. The pertinent findings were tenderness over the lower lumbar area and the associated paraspinous muscles. There were no paravertebral spasms or malalignment. The Veteran declined range-of-motion testing for fear of muscle spasms. He would not get out of his wheelchair for neurological testing. On VA examination in October 2007, the Veteran complained of constant pain, which was worse with movement. He could not bend to tie his shoes, put on socks, or wash his legs or feet. His activities of daily living were not otherwise impaired. He could walk 200 to 300 feet with a cane, which was his preferred way of getting around the house. Physical examination showed tight musculature in the lumbar paraspinals. The spine curvature was normal. Non-physiologic responses included significant pain with very light touch and increased pain with both axial loading and truncal rotation. Flexion was to 60 degrees, extension was to 15 degrees, lateral flexion was to 25 degrees bilaterally and rotation was to 30 degrees bilaterally, with reports of painful motion throughout. Reflexes were normal at the knees and absent in the ankles. Sensory responses were normal in the lower extremities. The lower extremity strength was weak but about normal for the amount of muscle mass. The VA examiner no functional loss or incapacitation, or flare-ups of pain. In August 2008, VA records note that the Veteran had not been seen for several years. The Veteran was in a wheelchair, but he was not wheelchair dependent. The Veteran stated, however, that he could not walk more than 200 feet, even with a cane. There was generalized disuse of the musculature in the arms and legs. In March 2009, the Veteran complained across the lower spine. He could walk with a cane for shorter distances. He did not want to perform truncal mobility testing for fear of pain. He was issued a TENS unit, Thermophore, and lumbar cushion, as well as a new cane. VA records show that on January 6, 2010, the Veteran complained of radiating pain in the right lower extremity. There was reference to MRI in 2000, which showed a mild bulging disc contacting the nerve roots on the right side. On VA examination on January 27, 2010, the Veteran complained of chronic pain which was worse than it had ever been. The Veteran stated that he needed assistance with almost all activities of daily living. Changing position was the only thing which could relieve his pain. He used a back brace and a wheelchair, and took pain medication which had little effect. He could walk a short distance with a cane. He described daily incapacitating episodes. On physical examination, the Veteran arose slowly from his wheelchair and could not stand fully erect, and instead remained flexed to about 15 degrees. There were some spasms in the lumbar musculature and slight scoliosis. The VA examiner stated that there was no real atrophy in either leg although the musculature was atrophied from age and disuse. Range-of-motion testing showed flexion to 30 or 35 degrees with the Veteran holding onto his cane and chair for assistance. He still could not stand completely erect, lacking 15 degrees of full extension. Lateral flexion was to 15 degrees bilaterally. Rotation was to 10 degrees bilaterally with painful motion throughout all ranges. Repetition caused significantly increased pain and limitation of motion in all ranges. There was also evidence of fatigability and lack of endurance. The deep tendon reflexes and pulses were symmetrical. Sensation was grossly intact. Analysis Under the General Rating Formula for Diseases and Injuries of the Spine, before January 27, 2010, forward flexion was to 60 degrees with painful motion throughout on VA examination in October 2007. Forward flexion to 60 degrees with pain does not more nearly approximate or equate to flexion limited to 30 degrees of less, the criteria for a higher rating than 20 percent, considering functional loss due to pain, weakness, fatigue, incoordination, or lack of endurance, flare-ups, or painful movement under 38 C.F.R. §§ 4.40 and 4.45. There was no evidence of ankylosis of the entire thoracolumbar spine, either favorable or unfavorable, the criteria for a rating higher than 20 percent. While the Veteran does experience pain, the pain does not raise 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). To this extent, the Board places greater weight on the objective findings of the examination than the Veteran's subjective complaints of pain. 38 C.F.R. §§ 4.40, 4.45. There is no evidence of incapacitating episodes, namely, periods 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 4 weeks but less than 6 weeks during 12 months, the criteria for rating higher than 20 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As for objective neurological abnormalities, on VA examination in October 2007, the non-physiologic responses included significant pain with very light touch and increased pain with both axial loading and truncal rotation. Reflexes were normal at the knees and absent in the ankles. Sensory responses were normal in the lower extremities. As characteristic loss of reflexes and muscle atrophy due to nerve damage and sensory disturbances and constant pain were not shown, the findings do not more nearly approximate to mild incomplete paralysis of the sciatic nerve. And there was no evidence of loss of bladder or bowel control or other neurological pathology. VA records show that on January 6, 2010, the Veteran complained of radiating pain in the right lower extremity. There was reference to MRI in 2000, which showed a mild bulging disc contacting the nerve roots on the right side. The finding equates to mild incomplete paralysis of the sciatic nerve under Diagnostic Code 8520, and warrants a separate 10 percent rating, but moderate incomplete paralysis was not shown for the next higher rating under Diagnostic Code 8520. On VA examination on January 27, 2010, flexion was to 30 or 35 degrees. Repetition caused additional limitation of motion in all planes. Under the General Rating Formula for Diseases and Injuries of the Spine, as of January 27, 2010, forward flexion to 30 or 35 degrees and additional limitation of motion with repetition more nearly approximate or equate to flexion limited to 30 degrees or less, the criteria for a 40 percent, considering functional loss due to pain, weakness, fatigue, incoordination, or lack of endurance, flare-ups, or painful movement under 38 C.F.R. §§ 4.40 and 4.45. There was no evidence of unfavorable ankylosis of the entire thoracolumbar spine, the criteria for a rating higher than 40 percent. While the Veteran does experience pain, the pain does not raise 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). To this extent, the Board places greater weight on the objective findings of the examination than the Veteran's subjective complaints of pain. 38 C.F.R. §§ 4.40, 4.45. There is no evidence of incapacitating episodes, namely, periods of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician, having a total duration of 6 weeks during 12 months, the criteria for a higher rating than 40 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. There was no material change as to the objective neurological abnormalities that more nearly approximated moderate incomplete paralysis of the sciatic nerve under Diagnostic Code 8520 for a separate rating higher than 10 percent rating. In summary before January 27, 2010, the criteria for a rating higher than 20 percent for lumbar degenerative disc disease had not been met. From January 27, 2010, to September 17, 2012, the criteria for a 40 percent rating for lumbar degenerative disc disease have been met. From January 27, 2010, and currently, the criteria for a rating higher than 40 percent rating for lumbar degenerative disc disease have not been met. From January 6, 2010, to September 17, 2012, the criteria for a separate rating for mild incomplete paralysis of the sciatic nerve in the right lower extremity were met. A Rating since January 27, 2010 On VA examination in September 2012, flexion was limited to 25 degrees. Repetitive use resulted in additional pain and limitation of motion. Under the General Rating Formula for Diseases and Injuries of the Spine, flexion limited to 25 degrees does not more nearly approximate or equate to unfavorable ankylosis of the entire thoracolumbar spine, the criteria for a rating higher than 40 percent. There was no evidence of incapacitating episodes, namely, periods of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician, having a total duration of 6 weeks during 12 months, the criteria for a higher rating than 40 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As for object neurological abnormalities, in rating decision in November 2012, the RO assigned a separate a rating of 20 percent for radiculopathy of the right lower extremity and a separate rating of 10 percent for radiculopathy of the left lower extremity, under Diagnostic Code 8520, effective September 17, 2012, which the Veteran has not disagreed with and the separate ratings are not on appeal. As the preponderance of the evidence is against the claim for a higher rating higher than 40 percent from January 27, 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 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria reasonably describe the Veteran's symptomatology, namely, limitation of motion and functional loss and neurological abnormalities. In other words, the Veteran does not have symptomatology not already encompassed in the Rating Schedule, and the assigned schedular ratings for the degenerative disc disease are adequate. Therefore, referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Before January 27, 2010, a rating higher than 20 percent for lumbar degenerative disc disease is denied. From January 27, 2010, to September 17, 2012, a 40 percent rating for lumbar degenerative disc disease is granted. From January 27, 2010, and currently, a rating higher than 40 percent for lumbar degenerative disc disease is denied. From January 6, 2010, to September 17, 2012, a separate rating for mild incomplete paralysis of the sciatic nerve in the right lower extremity is granted. REMAND The Veteran asserts that he is unable to work, because of his service-connected disability. Where the Veteran raises the claim for a total disability rating for compensation based on individual unemployability, the claim is not a separate claim, but a part of the claim for increase on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the claim for a total disability rating is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). Accordingly, the case is REMANDED for the following action: 1. Ensure VCAA compliance with the duty to notify and the duty to assist on the claim for a total disability rating for compensation based on individual unemployability. 2. After the development of the claim, adjudicate the claim for a total disability rating for compensation based on individual unemployability. If the 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 matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs