Citation Nr: 1324952 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 09-47 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to a rating higher than 20 percent for degenerative changes of the lumbar spine. 2. Entitlement to a rating higher than 10 percent for associated radiculopathy of the right lower extremity. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had active military service from May 1976 to May 1980 and from October 1980 to February 1984. In August 2007 and again in November 2008, he filed a claim for higher ratings for his low back disability (degenerative changes of his lumbar spine) and for the associated radiculopathy of his right lower extremity. At the time, he had a 20 percent rating for the degenerative changes of his lumbar spine and an additional 10 percent rating for the associated radiculopathy of his right lower extremity, which combine to 30 percent. See 38 C.F.R. § 4.25 (2011). But rather than increasing these ratings, the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, instead issued a decision in January 2009 proposing to reduce the rating for the degenerative changes of his lumbar spine from 20 to 10 percent, while continuing the 10 percent rating for the associated radiculopathy of his right lower extremity. The RO later effectuated this rating reduction in March 2009, prospectively effective as of June 1, 2009. He appealed that decision to the Board. In contesting the reduction, he urged VA to consider restoring his rating to "no less than 20%." Therefore, since this appeal arose in the context of him initially trying to show his entitlement to a rating higher than 20 percent for his low back disability, and then, once the rating for this disability instead was reduced to 10 percent, to at least establish reinstatement of the prior 20 percent rating, the Board considered his appeal as not only concerning the reduction, but also his entitlement to an increased rating for this disability, along with the associated right lower extremity radiculopathy. And in an August 2012 decision, the Board restored (reinstated) the 20 percent rating for his low back disability as of the date that rating was reduced. The Board, instead, remanded his claim for a rating higher than 20 percent for this disability for further development. Thus, the only remaining issues on appeal concern whether he is entitled to a rating higher than 20 percent for his low back disability, which includes the derivative claim for a rating higher than 10 percent for the associated right lower extremity radiculopathy. FINDINGS OF FACT 1. Even considering his pain and other symptoms, the Veteran has had forward flexion of his thoracolumbar (thoracic and lumbar) spine limited to at worst 45 degrees and is not shown to have ankylosis, either favorable or unfavorable. 2. Also, even recognizing the diagnosis of degenerative disc disease (DDD), an August 2012 VA compensation examiner determined the Veteran does not have intervertebral disc syndrome (IVDS); and, regardless, there certainly is not any competent and credible indication of incapacitating episodes, meaning a period of acute signs and symptoms due to IVDS requiring 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 the past 12 months. 3. The radiculopathy affecting the Veteran's right lower extremity has been manifested primarily by sensory impairment, including decreased sensation; right lower extremity motor impairment has not been shown and the radiculopathy was specifically characterized as mild by the August 2012 VA examiner. CONCLUSIONS OF LAW 1. The criteria are not met for a rating higher than 20 percent the low back disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5235-5243 (2012). 2. The criteria also are not met for a rating higher than 10 percent for the associated radiculopathy of the right lower extremity. 38 U.S.C.A. §§ 1155, 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.124a, DC 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran 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. See 38 C.F.R. § 3.159(b)(1). A November 2008 letter explained the evidence necessary to substantiate the claims and VA and the Veteran's responsibilities. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, the Veteran was provided notice of the pertinent criteria for rating disability of the lumbar spine and for rating his associated radiculopathy. This letter was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the duty to assist, the claims file contains VA treatment records, the reports of VA examinations and the assertions of the Veteran and his representative. In compliance with the August 2012 remand, the RO/AMC obtained outstanding VA treatment records, appropriately attempted to obtain any available Social Security Administration (SSA) records and afforded the Veteran an August 2012 VA examination. In regard to the SSA records, VA was specifically informed by SSA in August 2012 that no such records were available. In response, the RO/AMC specifically included in the claims file a memorandum indicating that there are no records available and sent the Veteran an August 2012 letter, indicating that SSA had advised that such records were not available and asking him to submit such records if they were in his possession. The Veteran did not submit any records in response. Thus, the Board finds that VA has met its duty to assist with respect to attempting to obtain any possible SSA records. The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claim. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claim. II. Analysis Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). In deciding what rating is appropriate, consideration must be given to the history of the disability and all potentially applicable diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." See 38 U.S.C.A. § 1155 (2011); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, which is contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims files, both his physical claims file and electronic ("Virtual VA") claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In a February 2005 rating decision, the RO granted service connection for degenerative changes of the lumbar spine and assigned a 20 percent rating effective August 20, 2004. In November 2008, the Veteran filed a claim for increase for the low back condition, indicating that it had increased in severity. VA treatment records from 2007 to 2013 show ongoing treatment and evaluation for low back disability with radiculopathy. Treatment included pain injections, pain medication, physical therapy and acupuncture. The Veteran also used a back brace. Lumbar spine range of motion was generally assessed as limited to some degree but flexion was never found to be limited to 30 degrees or less. Range of motion was assessed to be as limited to as little as 50 percent of normal flexion with pain or to 45 degrees; 50 percent extension or to 20 degrees with pain; to less than 25 percent of normal right and left side bending; and to 25 percent right and left rotation. He also experienced some degree of radiation of pain into the right lower extremity down to the foot with some associated paresthesias. The Veteran's pain was noted to be exacerbated with activity such as forward flexion, prolonged ambulation, standing and cold weather. The Veteran was not found to have any motor impairment associated with his low back disability or radiculopathy. The Veteran was noted to have functional limitations, including that he could not perform heavy lifting or sit or stand for prolonged periods. He also reported difficulty pushing a cart during his food service work and he reported sleep disturbance due to pain. He indicated that he no longer walked for exercise, did not run and used his back brace at work. A December 2010 MRI of the lumbar spine produced a diagnostic impression of mild L4-L5 and L5-S1 spondylosis. EMG testing showed electrodiagnostic evidence of an acute on chronic right L5 radiculopathy. At a December 2008 VA examination, the Veteran reported that he had undergone six pain injection procedures, including steroid injections of the sacroiliac joints, epidural injections and finally radiofrequency nerve ablation. The last injection had been in July. He indicated that all of these procedures had given him only transient pain relief of a week or so with recurrence of the same complaints. Currently, the Veteran complained of an almost constant low back pain, which flared up on standing more than five minutes, walking more than a half mile, prolonged standing combined with stooping and lifting more than 10 to 20 pounds. There was stiffness of the back with some limitation of motion especially during flare-ups. The examiner could not give the exact limitation without resorting to speculation. The pain radiated along the right buttock and the lateral aspect of the right lower extremity down to the toes accompanied by a tingling sensation. The Veteran took tramadol tablets twice a day for pain and used an ordinary back corset. He often used a cane for walking because allegedly it gave him better stability and balance. The pain did not interfere with his activities of daily living and he indicated that he had not had any incapacitating episodes in the past year. The Veteran had been out of work since 2005. He had previously worked as a cook but had had problems with cocaine addiction. He had had treatment for this and reported that he had been clean and sober for the last 10 years. However, he had not been able to get or keep a job due to the felony on his criminal record. He also reported that he could not hold a permanent job as a cook because it entailed standing for long hours, which he was unable to do due to his low back pain. Physical examination showed that the Veteran was able to walk without a cane with a normal gait and normal heel and toe raising. Lumbar spine examination showed no deformity. There was a mild tenderness at the L5/S1 level with a minor paravertebral muscle spasm. Range of motion was flexion to 85 degrees with pain beginning at 70 degrees, extension to 20 degrees with pain in the last 5 degrees, right lateral flexion to 15 degrees with pain in the last 5 degrees, left lateral flexion to 25 degrees with no pain and left and right lateral rotation to 20 degrees each with pain in the last 5 degrees. Repetitive range of motion did not produced additional limitation due to pain, weakness, fatigue, lack of endurance or incoordination. Straight leg raising was 40 degrees on the right side with positive Lasegue's sign. It was 70 degrees on the left with a negative Lasegue's sign. Neurological examination showed decreased sensation over the lateral aspect of the right leg and foot. Motor strength was 5/5. There were diminished ankle and knee jerks bilaterally and good pedal pulses. An X-ray showed moderate degenerative disc disease demonstrated at L5/S1 associated with mild to moderate spondylosis. An MRI done in July 2008 had shown marked narrowing and dessication of the L5, S1 disk with a small midline posterior disk herniation and bilateral spinal neural foramen stenosis compressing the L5 spinal nerve on the left side. The diagnoses were L5/S1 degenerative disc disease with disc herniation and right lower extremity radiculopathy and spinal stenosis by MRI. In a March 2011 letter, the VA Vocational Rehabilitation and Employment division indicated that the Veteran had been rehabilitated. The letter noted that he had been employed as a food service worker for the Miami VA Medical Center for the past 60 days. At an August 2012 VA examination, the Veteran reported that he had had persistent lumbar pain since the VA examination in 2010. The pain would worsen with standing more than 10 minutes, sitting more than 10 to 15 minutes, and walking. He indicated that he had received acupuncture, physical therapy and injections for back pain but none of these treatments had helped. He noted that taking tramadol had helped some. He reported that his pain radiated down the side of the right leg to the foot. The pain was persistent but would get worse with activity. He stated that he used to have numbness in the lateral right calf but that he had not noticed these problems recently. The Veteran reported experiencing flare-ups but did not describe the frequency or severity of these episodes. Physical examination showed range of motion of 85 degrees flexion with pain beginning at 80 degrees, extension to 20 degrees with pain beginning at 20 degrees, right lateral flexion to 15 degrees with pain beginning at 10 degrees, left lateral flexion to 20 degrees with pain beginning at 10 degrees, right lateral rotation to 15 degrees with pain at 15 degrees and left lateral rotation to 20 degrees with pain at 20 degrees. On repetitive use, right and left lateral flexion was limited to 10 degrees. There was no additional limitation of flexion, extension or rotation on repetitive use. The examiner described the Veteran's functional loss as characterized by less movement than normal, pain on movement, disturbance of locomotion and interference with sitting, standing and/or weight bearing. The examiner noted that the Veteran had diffuse lumbar tenderness at the midline and bilateral sacroiliac joint tenderness. The Veteran also had guarding or muscle spasm severe enough to result in abnormal spinal contour, such as scoliosis, reversed lordosis or abnormal kyphosis. Neurological examination showed that muscle strength in the lower extremities was normal. The Veteran did not have muscle atrophy. There was decreased sensation in the foot/toes bilaterally. The examiner noted that the Veteran had radiculopathy. He noted that the symptoms of this included mild constant pain in the right lower extremity and moderate intermittent pain in the right lower extremity. The radiculopathy involved the sciatic nerve on the right and was characterized as mild in degree. The examiner found that the Veteran did not have radiculopathy of the left lower extremity. The examiner also noted that the Veteran's sensory examination showed decreased sensation to 10 gram filament in the bilateral toes and on the lateral aspect of the right knee, increased sensation in the lateral aspect of the right knee and decreased sensation in left lower extremity to pinprick and decreased sensation to vibratory sense in the lateral right foot. The examiner found that the Veteran did not have intervertebral disc syndrome (IVDS). It was noted that the Veteran did regularly use a brace and a cane. The examiner noted that the Veteran's lumbar spine condition did impact his ability to work. He was unable to lift more than 30 pounds and had difficulty pushing carts if they were not rolling smoothly. On occasion he had been asked to work an 8 hour shift and had experienced increased back pain as a result. Thus, he would no longer agree to work 8 hour shifts. Effective September 26, 2003, lumbar spine disability is to be evaluated either under the general rating formula for diseases and injuries of the spine or, if applicable, under the formula for rating intervertebral disc syndrome based on incapacitating episodes. Under the general rating criteria for disabilities of the spine, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine is rated as 40 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. The General Rating Formula specifies that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Note (2). Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic 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 generally recognized by VA. Note (3). The term "combined range of motion" refers to "the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation"; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. Id., Notes (2) and (4). Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, intervertebral disc syndrome manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months warrants a 60 percent evaluation; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, a 40 percent evaluation is warranted; and with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, a 20 percent evaluation is warranted. Note 1 of that Diagnostic Code provides that, for purposes of evaluations under Diagnostic Code 5243, 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. The evidence does not show that the Veteran's forward flexion has been limited to 30 degrees or less at any time during the appeal period. Instead, flexion has not been shown to be limited to less than 45 degrees. Also, flexion was found to be considerably less limited, to 85 degrees, during both the December 2008 and August 2012 VA examinations. Additionally, ankylosis is neither shown nor alleged. Consequently, a rating in excess of 20 percent under the General Rating formula is not warranted. Considering the formula for rating intervertebral disc syndrome (IVDS), the August 2012 VA examiner found that despite the Veteran having disc disease, he did not have IVDS. There is no specific finding of record to the contrary (i.e. a specific finding that the Veteran does have IVDS. However, even assuming IVDS is present, incapacitating episodes requiring bedrest prescribed by a physician have not been shown. Consequently, a rating in excess of 20 percent under the formula for rating IVDS is not warranted. Additional factors that could provide a basis for an increase have also been considered; however the evidence does not show that the veteran has functional loss beyond that currently compensated. 38 C.F.R. §§4.40, 4.45, Deluca v. Brown 8 Vet. App. 202 (1995). The Veteran was shown to have additional limitation of lateral flexion on repetitive use during the August 2012 VA examination. However, even with this additional limitation, the lateral flexion was still to 10 degrees bilaterally. Thus, his level of function was not assessed to be as severe as favorable ankylosis (i.e. where all motion is lost). Additionally, there was no limitation of flexion, extension or rotation on repetitive use. Further, the Veteran not shown to have any additional limitation of motion on repetitive use during the December 2008 VA examination. Nor are there any other findings of record indicative of functional loss equal or greater than the level of 30 degrees or less of forward flexion or favorable ankylosis of the lumbar spine. Accordingly, a rating in excess of 20 percent is not warranted based on such loss. Considering the Veteran's right lower extremity radiculopathy, this disability has been assigned a 10 percent rating under Diagnostic Code 8520. Under this code, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve; and a 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve; this is when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520 The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with the application of the bilateral factor. 38 C.F.R. § 4.124a; see also 38 C.F.R. § 4.26. In the instant case, the Veteran is shown to have sensory impairment associated with his right lower extremity radiculopathy but is not shown to have motor impairment associated with this disability. In this regard, neither the August 2012 VA examiner nor the December 2008 VA examiner found that the Veteran had any motor impairment of the lower extremities associated with his radiculopathy or low back disability. Similarly, the VA medical records also do not show any such associated motor impairment. While there are some findings in these records indicative of less than the maximum level of strength in some of the muscles of the lower extremities, these findings were not specifically identified as abnormal, nor were they attributed to the Veteran's low back disability and/or right lower extremity radiculopathy. Accordingly, they do not provide a basis for finding that such motor impairment is present. Additionally, when specifically considering the level of severity of the Veteran's right lower extremity radiculopathy, the August 2012 VA examiner characterized it as mild. There are no contrary findings of record (i.e. findings indicating that the radiculopathy has been more than mild in degree). Accordingly, given the specific finding of the August 2012 VA examiner and given that the Veteran's radiculopathy is not shown to involve motor impairment, the weight of the evidence indicates that the radiculopathy is characterized by a level of impairment compatible with mild incomplete paralysis.. Consequently, a rating in excess of 10 percent under Diagnostic Code 8520 is not warranted. The Board notes that the Veteran has been intermittently noted to have some symptoms of radiating sensation into the left lower extremity. However, he has not been diagnosed with radiculopathy or with other neurological impairment of this extremity that has been associated with the underlying service-connected low back disability. Also, the August 2012 VA examiner specifically found that the Veteran did not have radiculopathy of the left lower extremity. Accordingly, the weight of the evidence is against the presence of any radiculopathy or other left lower extremity neurological impairment associated with the Veteran's service connected low back disability and assignment of a separate rating under Code 8520 for this extremity is not warranted. The Board has also considered whether the Veteran's claims for increase for low back disability and radiculopathy should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted for during the appeal period. As explained above, the Veteran's low back symptomatology, including pain and limitation of motion, and the Veteran's right lower extremity symptomatology, including pain and decreased sensation, is fully contemplated by the pertinent diagnostic criteria. There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). ORDER The claim of entitlement to a rating higher than 20 percent for the degenerative changes of the lumbar spine is denied. The claim of entitlement to a rating higher than 10 percent for the associated radiculopathy of the right lower extremity also is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs