Citation Nr: 1322814 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 07-13 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to referral for consideration of an extra-schedular evaluation for the Veteran's lumbar spine disability for the period prior to December 2010, when it was evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from September 1978 to December 1999. This matter comes before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama that confirmed a 10 percent rating for the Veteran's lumbar spine disability. In November 2010, the Board remanded the issue for additional development after which the RO increased the disability evaluation to 40 percent, effective from December 2010, and assigned separate 10 percent ratings for secondary left and right lower extremity radiculopathy. The matter was returned to the Board and in a January 2012 decision, the Board denied evaluations in excess of 10 percent prior to December 2010, and in excess of 40 percent thereafter for the orthopedic manifestations of the Veteran's disability, as well as denied ratings in excess of 10 percent for his left and right lower extremity radiculopathy. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2012 Memorandum Decision, the Court vacated the Board's January 2012 decision as it pertained to entitlement to an evaluation in excess of 10 percent for a lumbar spine disability prior to December 6, 2010 on an extraschedular basis, and remanded the case to the Board for readjudication. FINDINGS OF FACT The disability picture of the Veteran's service-connected lumbar spine disability prior to December 6, 2010 is not so exceptional as to make the schedular evaluation inadequate. CONCLUSION OF LAW The criteria for referral for an extraschedular evaluation in excess of 10 percent for a lumbar spine disability prior to December 6, 2010 have not been met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.321(b)(1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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. 38 C.F.R. § 3.159 (2012); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise 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. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claim, a letter dated in August 2005 fully satisfied the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist in this case, the Veteran's service treatment records, VA treatment records, and private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations, the reports of which have been associated with the claims file, in conjunction with his claim. The examiners provided well-reasoned rationales for their opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. Similarly, the Court has not questioned the adequacy of VA's notice in this case or the development undertaken. Accordingly, the Board will proceed to a decision. Extraschedular Increased Rating Generally, evaluating a disability using either the corresponding or analogous Diagnostic Codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27. The ratings are averages, however, so that it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the schedular rating is found to be inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. 38 C.F.R. § 3.321(b); see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe a veteran's disability level and symptomatology, the disability picture is considered to have been contemplated by the rating schedule, and the assigned schedular evaluation is considered to be adequate. If, however, the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. If this is the case, then the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Veteran wrote in July 2005 that his chronic low back pain affected 80 to 90 percent of the things that he did and that his back was stiff all of the time. At August and October 2004 VA treatment the Veteran complained of low back pain and occasional back spasms. He reported treating his episodes of back pain by avoiding lifting and by using a transcutaneous electrical nerve stimulation (TENS) unit. On physical examination, the Veteran demonstrated a range of motion of his bilateral lower extremities that was deemed within functional limits, and he was assessed as demonstrating good strength in his lower extremities. The treating physical therapist noted that the Veteran had a 25 to 50 percent limitation of lumbar rotation, extension, forward flexion, and lateral flexion. Nevertheless, the Veteran demonstrated good sitting balance, standing balance, and coordination, and he was assessed as functionally independent. A September 2005 VA physical therapy treatment record reflects similar findings in regards to the low back, including a recent flare-up of back pain. At a February 2005 VA pain screening and assessment the Veteran rated his low back and leg pain as eight out of ten in intensity. The pain was throbbing, squeezing, radiating and sharp. In the past week the pain had been described as a six out of ten in intensity. December 2005 X-rays of the Veteran's lumbar spine were interpreted to reveal no significant abnormalities. The Veteran underwent a VA examination in February 2006 at which he reported experiencing lower back pain with radiation, numbness, and tingling to his left hip and leg. As a result, the Veteran reported that he was unable to stand or sit for long periods of time, with flare-ups of his back disability triggered by standing longer than 45 minutes or sitting for greater than 20 minutes. However, the Veteran reported no limitations in how long he could walk, and he reported that he occasionally used a cane and back brace to treat his back pain. He also denied experiencing any associated bowel or urinary incontinence or any associated erectile dysfunction. On physical examination, the Veteran had a normal spinal curvature and gait. Range of motion testing showed lumbar forward flexion from 0 to 80 degrees, extension from 0 to 20 degrees, left lateral flexion from 0 to 15 degrees, right lateral flexion from 0 to 25 degrees, and bilateral lateral rotation from 0 to 20 degrees, with the limitations of motion due to pain. However, the examiner stated that the Veteran had no additional impairment due to weakness, fatigability, or lack of endurance on repetitive use. The examiner further noted that the Veteran had a normal motor and sensory examination and deep tendon reflexes and no evidence of foot drop. An x-ray of the Veteran's lumbar spine revealed no abnormalities, and the examiner diagnosed the Veteran with a lumbar strain. The major functional limitation was pain. A subsequent February 2006 VA treatment record reflects the Veteran's report of experiencing lower back pain, and on physical examination, straight leg raise testing was positive bilaterally. A May 2006 VA magnetic resonance imaging (MRI) study of the Veteran's lumbar spine was interpreted to reveal lumbar disc bulging, thecal sac compression, and facet effusions. A June 2006 private treatment record reflects the Veteran's report of experiencing lower back pain after prolonged standing. A physical examination of the Veteran's back revealed no abnormalities. The evaluating physician noted that the recent MRI study of the Veteran's lumbar spine revealed a bulging disc and mild compression. The assessment was lumbar intervertebral disc degeneration. The Veteran wrote on his March 2007 VA Form 9 that he could not get out of bed due to his lumbar strain and that he sometimes needed help to get out of bed or out of a chair. He could not stand longer than 10 minutes and could sit for 15 minutes before having to change position. A February 2008 private treatment record reflects an assessment that the Veteran's reported left hip pain was likely a manifestation of radiating back pain resulting from lumbar intervertebral degeneration. A June 2008 private treatment record reflects the Veteran's report of experiencing lower back pain radiating to his left leg, and on physical examination, the Veteran was noted to have muscle spasms in his lower back and positive results on left straight leg raise testing. The Veteran was assessed with lumbar radiculopathy. A September 2008 MRI study was interpreted to reveal evidence of multilevel degenerative disc disease and lumbar intervertebral degeneration. VA treatment records from October 2008 indicate that the Veteran was independent in all aspects of activities of daily living. The Veteran had constant, sharp aching left paralumbar pain that radiated to the hips. A private podiatrist wrote in an October 2008 statement that the Veteran had a long history of chronic low back, hip, leg and foot pain. A lower extremity examination was suggestive of lumbar radiculopathy and a lumbar epidural space block was recommended. A November 2009 VA examination included an assessment of the Veteran's lumbar spine disability. The Veteran reported experiencing daily severe lower back pain, with pain, tingling, and numbness radiating to his lower extremities. He also reported experiencing two self-described incapacitating episodes of back pain, each lasting three to four days. However, the examiner did not feel that the Veteran had experienced any incapacitating episodes of intervertebral disc syndrome. The Veteran also reported experiencing urinary incontinence, but the examiner noted that these symptoms were unrelated to the Veteran's lumbar spine disability and were instead attributable to benign prostate hypertrophy. With regard to his employment, the Veteran reported having missed two weeks of work in the past 12 months due to his back disability. However, the examiner opined that the Veteran's lumbar spine disability did not have any significant effect on the Veteran's occupation as a photograph laboratory technician. On examination, the examiner noted that the Veteran demonstrated a normal posture, spinal contour, and gait, with no evidence of spinal ankylosis or muscular spasm, atrophy, guarding, tenderness, weakness, or pain with motion. Additionally, motor, sensory, and reflex examinations revealed no abnormalities. On range of motion testing, the Veteran demonstrated 0 to 80 degrees of lumbar forward flexion, 0 to 5 degrees of lumbar extension, and 0 to 25 degrees of bilateral lateral flexion and rotation. While the examiner noted that the Veteran had objective pain following repetitive motion, he noted no evidence of any additional limitation of motion following repetitive range of motion testing. Lasegue's testing (straight leg raise testing) results were negative, as well. July 2010 VA treatment records reflect the Veteran's report of experiencing left back pain radiating to his right leg, and an assessment of chronic lower back pain with radiculopathy in the right leg was noted. A July 2010 MRI study report showed evidence of new bulging discs since the 2008 MRI study. In an August 2010 letter, the Veteran's treating private physician reported that a July 2010 MRI study had revealed new bulging discs and slightly more moderate spinal stenosis. At a December 6, 2010 VA examination, the Veteran reported experiencing daily, constant, severe lower back pain that was aggravated by prolonged standing, bending, and certain body positions and was alleviated by rest, avoiding certain activities, receiving epidural steroid injections, and taking prescription medications. The Veteran also reported experiencing severe flare-ups of back pain occurring every two to three weeks and lasting one to two days. He said that during these flare-ups, his activity level decreased by 90 percent. The Veteran denied experiencing any urinary or bowel incontinence or erectile dysfunction, but reported experiencing numbness, paresthesia, fatigue, decreased motion, stiffness, weakness, spasm, and pain, including pain radiating to both lower extremities associated with his lumbar spine disability. He also reported only being able to walk for a quarter mile and missing three weeks of work in the past year due to his back disability. The Board finds that the 10 percent schedular rating contemplates the Veteran's lumbar spine disability prior to December 6, 2010 and that he therefore is not entitled to an extraschedular evaluation. Most of the symptoms the Veteran identifies are his response to pain. Pain is specifically contemplated in the rating criteria, as they instruct to make the schedular assignment "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." See 38 C.F.R. § 4.71a, The Spine (2012). Indeed, use of the terms, "such as" suggests pain, stiffness, and aching is not an exhaustive list, but examples of the type of symptoms to be considered along with the enumerated criteria for a particular rating, as to produce a consistent disability picture. The 10 percent rating during the period at issue by its terms also contemplates muscle spasm, about which the Veteran complained, and it must be observed that the Veteran attributed one symptom to his back, (urinary incontinence) which was specifically noted to be related to another disability, (benign prostatic hypertrophy). This raises questions about whether all the Veteran's pain complaints and other symptoms can be attributed to his back when he also has other medical issues that could reasonably produce pain, or otherwise limit the Veteran's activities and endurance, (e.g., right ankle, left rib, chest pain as listed as the Veteran's complaints not subject to VA compensation). Thus, the probative weight accorded to the Veteran's subjective complaints is diminished, and all the more when VA examiners or treatment providers comment that the Veteran was independent in all aspects of activities of daily living or that there was no significant effect on the Veteran's employment. These factors, together with the regulatory provision under 38 C.F.R. § 4.1, that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability, establish that the schedular criteria reasonably describe the Veteran's disability level and symptomatology, and referral for extra-schedular consideration is not warranted. ORDER Entitlement to referral for consideration of an extra-schedular evaluation for the Veteran's lumbar spine disability for the period prior to December 2010, when it was evaluated as 10 percent disabling, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs