Citation Nr: 1324471 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 07-32 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to increased evaluations for post stress positive of the lumbosacral spine (claimed as osteoarthritis), rated as 10 percent disabling prior to September 30, 2011 and as 40 percent disabling thereafter. REPRESENTATION Appellant represented by: Lori Chism, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Senior Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Following an October 2010 Travel Board hearing, the Board remanded this case in February 2011. In that remand, the Board also dismissed a withdrawn claim of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). The Veteran has not since asserted, either in a direct claim or indirectly, that he seeks to pursue a TDIU claim, and the Board thus finds that no TDIU claim has been raised anew. But see Rice v. Shinseki, 22 Vet. App. 447 (2009) (when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability). FINDINGS OF FACT 1. Evidence from the entire appeal period beginning on November 2, 2005 (the date of receipt of the current claim) confirms lumbosacral spine flexion of less than 30 degrees and muscle spasm or guarding severe enough to result in an abnormal gait; the evidence from this period, however, does not demonstrate ankylosis or doctor-prescribed bed rest. 2. Evidence beginning on February 28, 2006 confirms mild radiculopathy of the right lower extremity. 3. Evidence beginning on September 30, 2011 confirms mild radiculopathy of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for a 40 percent evaluation for post stress positive of the lumbosacral spine (claimed as osteoarthritis) have been met for the period from November 2, 2005 until September 30, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2012). 2. The criteria for an evaluation in excess of 40 percent for post stress positive of the lumbosacral spine (claimed as osteoarthritis), for any period during the appeal period, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2012). 3. The criteria for a separate 10 percent evaluation for radiculopathy of the right lower extremity have been met, effective from February 28, 2006. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2012). 4. The criteria for a separate 10 percent evaluation for radiculopathy of the left lower extremity have been met, effective from September 30, 2011. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the Veteran was provided with appropriate notice letters in February and March of 2006, prior to adjudication of the claim in December 2006. The criteria for the claimed benefit, as well as the types of evidence needed to support the claim, were addressed during the October 2010 hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In short, there are no shortcomings of notification in this case that could possibly have a prejudicial effect. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA has obtained service treatment, VA, private, and Social Security Administration (SSA) records in conjunction with this appeal. Multiple VA examinations have been conducted, with all requisite information needed for rating purposes addressed in the examination reports. The instructions contained in the February 2011 Board remand (including requests for SSA and VA records, and for a new VA examination) have been complied with in full. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The Board does note one deficiency of the Veteran's December 2011 Supplemental Statement of the Case, insofar as the only new evidence noted in this issuance is his September 2011 VA examination report. No mention is made of a March 2011 VA examination report, or of recently acquired SSA or VA records. At the same time, the Board notes that the Veteran subsequently signed a waiver document in January 2012, in which he confirmed that he wanted to expedite processing of his claim and waive his right to have his case remanded for subsequently received evidence to be reviewed by the Agency of Original Jurisdiction (i.e., the RO). Insofar as the Veteran has waived his right to RO review of additional evidence, the Board finds that he will not be prejudiced by any omission of consideration of evidence in the December 2011 Supplemental Statement of the Case. Rather, to remand for consideration of such evidence at this point would only result in delay in a case in which, in multiple respects, the Board has reached conclusions favorable to the Veteran. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The applicable diagnostic criteria for evaluating spine disorders include a general formula for rating most spine disorders (Diagnostic Codes 5235-5242) and separate criteria for rating intervertebral disc syndrome (Diagnostic Code 5243). Under the general formula for rating spine disorders, a 10 percent evaluation is in order for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or a vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is in order for forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent evaluation contemplates unfavorable ankylosis of the entire spine. With regard to this formula, the "combined range of motion" refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a (Plate V) indicates that normal range of motion of the thoracolumbar spine encompasses flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Under Diagnostic Code 5243, for rating intervertebral disc syndrome, a 10 percent evaluation is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. A 20 percent evaluation contemplates intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent evaluation is assigned in cases of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. 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. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. In a January 1983 rating decision, service connection was granted for "[p]ost stress positive for lumbosacral spine" on the basis of frequent in-service treatment for low back problems and the Veteran's placement on a profile as a consequence. Based upon this and the findings from a November 1982 orthopedic examination, a 10 percent evaluation was assigned as of October 1982. This evaluation was still in effect at the time that the Veteran's November 2005 claim was received. In conjunction with the current appeal, a VA examination was conducted in February 2006. The Veteran had a limping gait favoring the right leg and was unable to do gait maneuvers due to a weak right leg. There was evidence of mild spasm, atrophy, tenderness, and weakness; and moderate guarding and pain with motion of the lumbar sacrospinalis (left and right). Muscle spasm, localized tenderness, or guarding were noted to be severe enough to be responsible for abnormal gait or abnormal spinal contour. The Board notes that this finding is sufficient to support an at least 20 percent evaluation on the basis of muscle spasm or guarding severe enough to result in an abnormal gait. Moreover, prior to September 30, 2011, the Veteran was shown on multiple occasions to have very limited flexion of the lumbar spine. In February 2006, he was noted to have flexion from zero to 10 degrees, with pain throughout. In October 2006, he was found to have active flexion to only 15 degrees, with pain at 15 degrees. There was more flexion upon examination on March 2011; flexion was to 62 degrees, with pain on active motion, and to 54 degrees following repetitive motion. Nevertheless, the 2006 findings, viewed in the context of a September 2011 VA examination showing flexion of "0-15 at hips but no motion in [lumbosacral] spine," are reflective of a disability picture that, in terms of limitation of flexion, is consistent with a 40 percent evaluation. See also DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); 38 C.F.R. §§ 4.40, 4.45. Given that there was evidence supporting this evaluation on the first VA examination following receipt of the claim on November 2, 2005, the Board finds that this date should be the effective date for the 40 percent evaluation. To this extent, the appeal is granted. Now that a 40 percent evaluation has been assigned for the entire appeal period, the question becomes whether an even higher evaluation is warranted. A review of the claims file, however, reveals no evidence of ankylosis or doctor-prescribed bed rest, including from the most recent (September 2011) VA examination. The Veteran did not contend that these symptoms were present during his October 2010 VA video conference hearing. These are the only possible bases for a higher rating under Diagnostic Codes 5237 and 5243. As such, a rating in excess of 40 percent must be denied. The Board will now turn its attention to the question of whether separate compensable ratings are assignable on the basis of associated objective neurological abnormalities. In this regard, the Board notes that, under 38 C.F.R. § 4.124a, Diagnostic Code 8520, evaluations are assigned for incomplete paralysis of the sciatic nerve which is mild (10 percent), moderate (20 percent), moderately severe (40 percent), and severe with marked muscular atrophy (60 percent). In cases of complete paralysis, with the foot dangling and dropping, no active movement of the muscles below the knee, and flexion of the knee weakened or (very rarely) lost, an 80 percent evaluation is warranted. In reviewing the claims file, the Board notes that the February 28, 2006 VA examination contains a diagnosis of degenerative joint disease of the lumbar spine with residuals of back surgery and an "abnormality due to [right] leg sciatica." The Veteran reported pain radiating across the back and to the hips, mostly to the right. The examination report indicates normal reflex testing on the left, absent knee and ankle jerk on the right. A sensory examination revealed impaired vibration of the lower extremities, and the examiner noted "decreased vibration hands and feet glove stocking distribution" bilaterally. Separately, the Veteran denied urinary incontinence, urinary frequency, urinary urgency, fecal incontinence, leg or foot weakness, numbness, visual dysfunction, paresthesias, falls, dizziness, urinary retention, and obstipation but reported intermittent erectile dysfunction and "monthly+" unsteadiness. In response to whether the etiology of any of these complaints was unrelated to the claimed disability, the examiner answered "yes." While the February 2006 VA examiner did not provide detailed insight into the question of associated objective neurological abnormalities, the combination of the finding of impaired vibration and the diagnosis of right sciatica reflects that the Veteran met the criteria for a separate 10 percent evaluation for mild right sciatica as of February 28, 2006. The Board notes that impaired vibration was noted for the left lower extremity, but the Veteran's subjective complaints stressed the involvement of the right lower extremity, and no diagnosis was rendered as to the left lower extremity. The Board is thus unable to conclude that an associated chronic left lower extremity abnormality was present at that time, and as of that date there was no basis for a separate compensable evaluation. The examiner's July 2006 addendum opinion does not provide insight into the question of associated objective neurological abnormalities. The examiner did note "baseline disabling manifestations" of a nonservice-connected disease of low back pain due to disc herniation, lumbar stenosis, lumbar spondylosis, and retrolisthesis L4-L5 and found that it was at least as likely as not that the Veteran's osteoarthritis was aggravated by the service-connected low back disability. The Veteran underwent a further VA examination with the same examiner in October 2006, which again indicated weakness of the right leg as compared to the left leg. The examiner noted decreased vibration among hands and feet, glove stocking distribution, bilaterally. No motor abnormalities were noted on the left side, but there was decreased strength in the left leg. Ankle jerk was absent bilaterally. The Board finds that these examination findings are consistent with the assignment of a 10 percent evaluation for right leg sciatica but again are not sufficient to establish that the criteria for a separate compensable evaluation for neurological abnormality of the left leg were met. In March 2011, the Veteran underwent his next VA examination. When asked about radiation, the Veteran noted that his pain sometimes radiated to the proximal right lower extremity and was throbbing in nature. The examination itself revealed hypoactive knee and ankle jerks bilaterally, with sensory examination findings unremarkable. The examiner noted that the Veteran's low back disability was at least as likely as not a result of an in-service injury in 1966 but otherwise provided no findings that would support either a rating in excess of 10 percent for right sciatica or a separate compensable rating for a neurological disability of the left lower extremity. The Veteran's most recent VA examination was conducted on September 30, 2011. During this examination, muscle strength and reflex testing of the lower extremities were within normal limits. There was decreased sensation to light touch at the lower leg/ankle on the left and in the foot/toes on the right. The examiner confirmed radiculopathy, with constant moderate pain in both lower extremities but no other symptoms. No other neurological findings (such as bowel or bladder problems/pathologic reflexes) were noted. The examiner found that the Veteran's current disability was caused by or the result of a service-connected injury to the lower back in service. Given these examination findings, the Board is now satisfied that the criteria for a separate compensable evaluation for radiculopathy of the left lower extremity have been met. The examiner specified radiculopathy of both lower extremities, with moderate pain, and also noted decreased sensation to light touch at the lower leg/ankle on the left. The Board finds that this symptomatology is commensurate to mild incomplete paralysis of the sciatic nerve and warrants a 10 percent evaluation as of September 30, 2011. In summary, the Board finds that a separate 10 percent evaluation is warranted for radiculopathy of the right lower extremity as of February 28, 2006, while a separate 10 percent evaluation is warranted for radiculopathy of the left lower extremity as of September 30, 2011. The Board does not find a basis for even higher evaluations; while the Veteran's pain was noted to be moderate bilaterally upon examination in September 2011, the examiner also noted normal muscle strength and reflex testing, and the Board finds that these symptoms viewed as a whole are no more than mildly disabling. As a final matter, in this case, the Veteran has submitted no evidence showing that the underlying spine disorder and the associated radiculopathy of both extremities have markedly interfered with his employment status beyond that interference contemplated by the assigned evaluations, and there is also no indication that frequent periods of hospitalization have been necessitated during the pendency of this appeal. Rather, the symptomatology shown on appeal has been fully contemplated by the assigned evaluations for the reasons described, and the Veteran has presented no specific argument in support of extra-schedular evaluations. The Board's consideration of this symptomatology is reflected in the partial grant of benefits, on a schedular basis, contained in this decision. As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to a 40 percent evaluation for post stress positive of the lumbosacral spine (claimed as osteoarthritis) is granted for the period from November 2, 2005 until September 30, 2011, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an evaluation in excess of 40 percent for post stress positive of the lumbosacral spine (claimed as osteoarthritis) is denied for the period beginning on September 30, 2011. A separate 10 percent evaluation for radiculopathy of the right lower extremity is granted, effective from February 28, 2006, subject to the laws and regulations governing the payment of monetary benefits. A separate 10 percent evaluation for radiculopathy of the left lower extremity is granted, effective from September 30, 2011, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs