Citation Nr: 1324901 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 09-50 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease (DDD). 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1967 to November 1971. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In his December 2009 VA Form 9 (substantive appeal), the Veteran requested a Travel Board hearing; he failed to appear for such hearing scheduled in August 2012. FINDINGS OF FACT 1. At no time during the appeal period is the Veteran shown to have had unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of thoracolumbar intervertebral disc syndrome; neurological symptoms other than radiculopathy of both lower extremities are not shown. 2. At no time during the appeal period has the Veteran's right lower extremity radiculopathy been shown to have resulted in impairment greater than mild incomplete paralysis. CONCLUSIONS OF LAW 1. A rating in excess of 40 percent is not warranted for the Veteran's lumbar spine disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a; Diagnostic Codes (Code(s)) 5235, 5237, 5243 (2012). 2. A rating in excess of 10 percent is not warranted for the Veteran's right lower extremity radiculopathy. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Code 8521 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. In a claim for increase, the VCAA requirement is generic notice, that is, 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, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claims. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A December 2008 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's pertinent treatment records have been secured. Social Security Administration records have been secured. The RO arranged for VA examinations in November 2007, January 2009, and February 2012. The Board finds that the examination reports provide sufficient information and reflection of the disability picture presented by the disabilities to be adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earnings capacity resulting from the disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where, as here, entitlement to compensation has already been established and 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). "Staged" ratings may be assigned for distinct periods where the severity of the disability varied, if warranted by factual data. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, including degree of disability, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's claim for increase was received in October 2008. He asserts his lumbar spine and right lower extremity disabilities have increased in severity. On November 2007 examination on behalf of VA, the Veteran reported complains of stiffness and weakness of the back. He stated that he had constant pain about his lumbar spine. The pain radiated to his back and legs, and was sharp and characteristic of crushing, aching, sticking, and burning. The severity of the pain was 9-10/(on s scale of)10, and was elicited by certain movement; and relieved by rest and medication (baclofen). He stated that at time he required complete bed rest. He related that he had a total of three to four days of incapacitation in the last year. It was also noted that he had cervical spinal surgery on February 6, 2007. On physical examination the Veteran's posture was normal. His gait was abnormal, with a limp favoring the right side. He had a positive straight leg raising test (bilaterally). Lumbar spine range of motion studies showed flexion to 10 degrees, extension 10 degrees, right and left lateral flexion 20 degrees, each, and right and left rotation 20 degrees, each. Range of motion of the lumbar spine was not additionally limited secondary to pain, fatigue, weakness, lack of endurance, or incoordination. There was no evidence of radiculopathy in the nerve roots of C3 through S1 with the exception of right L3-L4 sensory loss. Motor function of the lower extremities was normal. Sensory function was abnormal on the lateral aspect of the right leg. Reflexes of knee and ankle were 1+. The diagnoses were DDD of the lumbar spine at L3-L4, now with radiculopathy. VA treatment records (from February 2008 to November 2008) show that in February 2008 the Veteran underwent a right transforaminal lumbar interbody fusion (TF) at L4-5. In June 2008 he was seen for a follow-up at an outpatient pain clinic, with complaints of low back pain and radicular right lower extremity pain secondary to lumbar spondylosis and lumbar radiculitis, post right TF at L4-5 and L5-S1 epidural steroid injections. He reported that the second injection did not provide significant relief and he would proceed with a right L4-L5 TF epidural steroid injection. A September 2008 VA pain clinic follow-up report notes the Veteran received at least 3 epidural steroid injections in the past year; and had a repeat TF at L4-5 and L5-S1 epidural steroid injection on September 5, 2008. According to the Veteran he did not get pain relief from those procedures. He described intense lumbar pain, 8/10 in intensity, with radiation and paresthesias down both legs, and occasionally to his feet. He had increased pain with flexion. He was taking pain medications without effect. He denied bowel/bladder incontinence or saddle anesthesia. On physical examination there was tenderness to palpation over the midline lumbar spinous processes and range of motion was limited in all planes. On neurological evaluation, deep tendon reflexes were 2/4 bilaterally. Regarding muscle movement, tone appeared within normal limits throughout. Sensation was intact. His gait was non-antalgic, without any assistive devices. The assessment was chronic low back pain, followed in pain clinic and now post repeated TF and epidural steroid injection without result. It was noted that the etiology of his low back pain and radicular symptoms appear to be neural foraminal narrowing, discogenic and facetogenic pain. The examiner noted that it appeared from talking to the Veteran and his wife that he had not been on any structured pain control regiment for several months. The examiner explained noted the Veteran's frustration was warranted, but that he would need to be compliant with a new regimen that would take time to adjust to his specific needs. On January 2009 examination on behalf of VA, the Veteran reported complaints of tingling, numbness and pain, and abnormal sensation in the right leg. He stated that his low back pain was constant (and that he took gabapentin). He complained of disturbed sleep due to pain. Regarding lumbar spine DDD the Veteran stated that his low back pain was constant and radiated to his upper back and hips. The pain was sharp and characteristic of crushing, aching, sticking, burning, and cramping;. He rated the severity of the pain 8-10/10; it was exacerbated with physical activity and stress, and relived by rest. He denied any lower lumbar spine surgeries. On physical examination, his posture was normal. He had an abnormal, wide-based gait. There was tenderness to palpation of the paralumbar spine area. The straight leg raising test was negative bilaterally. Lumbar spine range of motion studies revealed flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, each, and right and left rotation to 20 degrees, each. Motion of the lumbar spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination. There was no evidence of radiculopathy in the nerve roots of L1 through S1 with the exception of right L4. Reflexes of both knees and both ankles were 2+. Coordination was intact; motor function was normal with decreased strength of the right lower extremity 4/5; sensory was intact. The diagnosis was sciatic nerve radiculopathy, right lower extremity associated with degenerative disc disease of the lumbar spine. On August 2010 VA physical medicine and rehabilitation (PM&R) kinesiotherapy consult the Veteran stated that he experiences pain getting out of bed and putting on his pants. He stated that he has to stand briefly before he can walk, and has a hard time getting up. Turning to the left caused sharp pain on the right side. He stated that he needs a device to assist in arising from bed. He can ride his bike (and riding the bike feels better than walking). He can ride 2-3 miles (going slow on level ground)m and then must rest before resuming any activity. His pain was on a level of 5/10; it was located on the right side of the groin, across the low back (at the surgical site), and right hip. The pain was constant, varied in intensity, and was sharp and pinching. It was aggravated by turning wrong, walking too much, being up too long, prolonged sitting, and walking on uneven ground. On February 2012 VA examination on behalf of VA, the Veteran reported that he had back surgery in 2010. He did not report flare-ups that impact the function of the thoracolumbar spine. Range of motion testing revealed forward flexion to 50 degrees, extension to 0 degrees (with pain at 0 degrees), right and left lateral flexion to 20 degrees (with pain at 20 degrees), and right and left lateral rotation to 20 degrees (with pain at 20 degrees). He was unable to perform repetitive-use testing with 3 repetitions. Post-test forward flexion ended at 50 degrees, extension at 0 degrees, right and left lateral flexion and rotation all at 20 degrees. Additional limitation in range of motion of the back was not shown; nor was any functional loss and/or functional impairment of the back shown. There was no localized tenderness or pain to palpation for joints and/or soft tissue of the back. He did have guarding or muscle spasm of the back severe enough to result in abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. The diagnosis was post laminectomy of the lumbar spine. Muscle strength on the right was 5/5. Muscle strength on the left was 5/5 in all aspects except great toe extension, which was 4/5. It was noted that he had muscle atrophy (the muscle was not identified). Reflexes of both knees and both ankles were 2+ on the right and 3+ on the left. Sensory for right and left upper anterior thigh (L2), right and left thigh/knee (L3-4), right lower leg/ankle (L4-S1), and right foot/toes (L5) was intact. Sensory for left lower leg/ankle (L4-S1) and left foot/toes (L5) was decreased. Straight leg raising was positive. It was noted that the Veteran had radicular pain and other signs and symptoms due to radiculopathy. He had moderate constant pain, paresthesias and/or dysesthesias and numbness of the left lower extremity; for the right lower extremity "none" was noted. There was nerve root involvement at L2-4 (femoral nerve). There were no other neurologic abnormalities or findings related to the back. Intervertebral disc syndrome (IVDS) was diagnosed. The Veteran had not had any incapacitating episodes over the past 12 months. He did not use assistive devices. Low back surgical scars were not painful and or unstable, nor was there a total area of all related scars greater than 6 square inches. It was noted that the Veteran's service-connected back disability impacts on his ability to work in that he has limited bending and lifting due to back pain, and ambulation is limited by radiculopathy. On further examination, it was noted that the Veteran has peripheral neuropathy. The diagnoses were "miralgia paraesthia of the right thigh and IVDS of left leg". The Veteran's report of mild constant pain of the right lower extremity and moderate constant pain of the left lower extremity was noted. Mild paresthesias and/or dysesthesias of the right lower extremity and moderate paresthesias and/or dysesthesias of the left lower extremity were noted. Muscle strength testing was normal. Reflexes were normal. On sensation testing bilateral thigh/knee (L3/4), and right lower leg/ankle (L4-S1) were normal; there was decreased sensation of the left lower leg/ankle (L4-S1). He had a normal gait. There were no special tests indicated or performed for medial nerve evaluation. It was noted that the left sciatic nerve and the right external cutaneous nerve of the thigh were mildly affected. The Veteran did not use assistive devices. Lumbar Spine DDD The Veteran's service-connected lumbar spine disability has been diagnosed as lumbar spine DDD (with status post laminectomy of the lumbar spine) and has been rated under 38 C.F.R. § 4.71a, Code 5235 (vertebral fracture or dislocation). It may also be rated under Code 5237 (lumbar strain) or Code 5243 (intervertebral disc syndrome (IVDS)). Code 5243 provides for rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) (as do Codes 5235 and 5237); or based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. There are several notes following the General Rating Formula criteria, which provide: (1) Associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. (2) For purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of the thoracolumbar spine is to 240 degrees. (3) In exceptional cases, an examiner may state that, because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. 38 C.F.R. § 4.71a. Under the formula for rating IVDS based on incapacitating episodes, a 40 percent rating is warranted for incapacitating episodes if such episodes had a total duration of at least four weeks but less than six weeks, during the past 12 months. A 60 percent (maximum) rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. Note (1) following Code 5243 provides that 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. 38 C.F.R. § 4.71a. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10 , 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The April 2009 rating decision on appeal continued a 40 percent rating for the low back disability. The instant claim for increase was received in October 2008; accordingly, the evaluation period begins in October 2007 (one year prior to receipt of claim). The Board will look for symptoms that would meet the criteria for, at least, the next higher (50%) rating during that period. A 50 percent rating under the General Formula requires unfavorable ankylosis of the entire thoracolumbar spine. No treatment record, examination report, or diagnostic study report during the appeal period shows unfavorable ankylosis of the entire thoracolumbar spine (even with factors such as pain, fatigue, use, etc. considered), and fixation of the thoracolumbar spine at an unfavorable angle is not alleged. The symptoms and associated impairment of function of the lumbar spine throughout the evaluation period fall within the parameters of the criteria for the 40 percent rating assigned, and never meet (or approximate) the criteria for the next higher (50 percent) rating under the General Formula; a schedular rating in excess of 40 percent for the orthopedic symptoms is clearly not warranted. See 38 C.F.R. §§ 4.40, 4.45, DeLuca, 8 Vet. App. 202. It is not shown or alleged that at any time during the appeal period the Veteran was placed on bed-rest by a medical provider. VA examination reports do not note any periods of physician prescribed bedrest during the appeal period. On November 2007 VA examination the Veteran stated that he required complete bedrest at times and complained of incapacitation three to four days the prior year; he did not indicate that any period of bed rest was prescribed by a physician. Regardless, even if the bed rest had been prescribed by a physician, a rating in excess of 40 percent based on incapacitating episodes would not be warranted as the total period of incapacitation during any one year period falls far short of what is required for the next higher (60 percent) rating (6 weeks; see 38 C.F.R. § 4.71a). Consequently, a higher rating based on incapacitating episodes is not warranted. Regarding separate ratings for neurological manifestations, radiculopathy of the right lower extremity is separately rated, and such rating is separately addressed below. The Veteran has not disagreed with the rating assigned for neurological manifestations of the left lower extremity and the propriety of that rating is not before the Board. No other neurological manifestations are shown or alleged. Right Lower Extremity Radiculopathy The April 2009 rating decision on appeal assigned a separate 10 percent rating for right lower extremity radiculopathy (as a neurological symptom of the low back disability). The Veteran's right lower extremity radiculopathy is rated under Code 8521 (for impairment of the external popliteal nerve). 38 C.F.R. § 4.124. Incomplete paralysis of the external popliteal nerve warrants a 10 percent rating when mild, a 20 percent rating when moderate, a 30 percent rating when moderately severe, and a 40 percent rating when severe. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the picture for complete paralysis given with each nerve, whether due to varied levels 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. 38 C.F.R. § 4.124a. The words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. After careful review of the evidence, and with consideration of the benefit of the doubt doctrine, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's right lower extremity radiculopathy. During the appeal period the right lower extremity radiculopathy is not shown to have been manifested by symptoms productive of more than mild impairment; therefore, a rating in excess of 10 percent under Code 8521 is not warranted. While the Veteran clearly has had some neurological impairment of the right lower extremity, the deficit found was sensory only and intermittent in nature. On November 2007 VA examination, the examiner noted that sensory function was abnormal on the lateral aspect of the right leg. In a September 2008 VA pain clinic follow-up report, it was noted that sensation was intact; and the Veteran had a non-antalgic gait without any assistive devices. On January 2009 examination right lower extremity sensory function was intact. On February 2012 VA examination sensory function of the right lower extremity was normal. Accordingly, a preponderance of the evidence is against a rating in excess of 10 percent for right lower extremity radiculopathy. The record does not reflect any distinct period of time when the symptoms of the Veteran's lumbar spine and right lower extremity disabilities exceeded those encompassed by the 40 percent and 10 percent ratings, respectively, assigned, and therefore staged increased ratings are not warranted. The preponderance of the evidence is against these claims; therefore, the appeal in these matters must be denied. The Board has also considered whether referral of either claim for consideration of an extraschedular rating is indicated. There is no objective evidence, or even allegation, of symptoms or impairment not encompassed by the schedular criteria; those shown are fully encompassed by the schedular criteria. Consequently, the schedular criteria are not inadequate, and referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Regarding a total disability rating based on individual unemployability (TDIU), the United States Court of Appeals for Veterans Claims (Court) has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for service-connected disability or disabilities, and therefore is part and parcel of a claim for increased compensation. In Roberson v. Principi, 251 F.3d 1378, 1384 (2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that once a claimant: (1)submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a). See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the record reflects that the RO considered, and denied, the Veteran's claim for a TDIU rating (See May 2010 rating decision) during the pendency of these claims for increase, and that he did not appeal the denial. In the absence of a Board-jurisdiction-conferring notice of disagreement in the matter, the May 2010 rating decision is final. The Board has no jurisdiction to address the matter. ORDER A rating in excess of 40 percent for lumbar spine degenerative disc disease is denied. A rating in excess of 10 percent for right lower extremity radiculopathy is denied. ____________________________________________ George R Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs