Citation Nr: 1326950	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  07-04 040	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 40 percent for degenerative changes of the lumbar spine.

2.  Entitlement to an initial disability rating in excess of 10 percent for incomplete paralysis of the sciatic nerve of the left lower extremity associated with degenerative changes of the lumbar spine.

3.  Entitlement to an initial disability rating in excess of 10 percent for incomplete paralysis of the sciatic nerve of the right lower extremity associated with degenerative changes of the lumbar spine.

4.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services

WITNESSES AT HEARINGS ON APPEAL

Appellant, his mother, and his spouse


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served from September 2000 to September 2004, including combat service in Iraq, and his decorations include the Combat Action Ribbon.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  In that decision the RO granted service connection for degenerative changes of the lumbar spine, and assigned that disability a 10 percent disability rating effective from September 26, 2004.  The Veteran appealed the initial rating assignment.

The Veteran testified before the undersigned at an October 2009 Travel Board hearing, and at an August 2013 video-conference hearing.  In December 2009, the Board increased the Veteran's disability rating for his degenerative changes of the lumbar spine to 40 percent as of September 26, 2004, and assigned separate 10 percent ratings for his left and right lower extremity sciatic impairments; the Board remanded the appeal for the time period beginning April 15, 2008.

In March 2011, July 2011, and August 2012, the Board remanded the case to the RO for further development.  The Board notes that the RO assigned a temporary evaluation of 100 percent for the Veteran's degenerative changes of the lumbar spine from January 18, 2011 through February 28, 2011 based on convalescent treatment; that rating is not on appeal.  38 C.F.R. § 4.30 (2012).

The United States Court of Appeals for Veterans Claims (Court) has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for a higher initial.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Because the Veteran has not worked since July 2012 due to his back disability, the Board has identified this issue on the title page of this decision.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to a disability rating in excess of 30 percent for PTSD and entitlement to a TDIU due to service-connected disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Throughout the appeal, the Veteran's degenerative changes of the lumbar spine are characterized by functional impairment during flare-ups that has effectively limited the forward flexion of his back to 30 degrees or less.

2.  The Veteran's spine is not characterized by ankylosis.

3.  Since April 15, 2008, the Veteran's degenerative changes of the lumbar spine are characterized by neurologic impairment of the left lower extremity that results in disability analogous to moderate incomplete paralysis of the sciatic nerve.

4.  Since April 15, 2008, the Veteran's degenerative changes of the lumbar spine are characterized by neurologic impairment of the right lower extremity that results in disability analogous to moderate incomplete paralysis of the sciatic nerve.

5.  The Veteran's low back disability results in marked interference with employment and thus presents an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards.


CONCLUSIONS OF LAW

1.  Effective April 15, 2008, the criteria for an initial disability rating of 50 percent for degenerative changes of the lumbar spine have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242 (2012).

2.  Effective April 15, 2008, the criteria for an initial rating of 20 percent, but no higher, for moderate incomplete paralysis of the sciatic nerve of the left lower extremity are met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.123, 4.124, 4.124a, DC 8520 (2012).

3.  Effective April 15, 2008, the criteria for an initial rating of 20 percent, but no higher, for moderate incomplete paralysis of the sciatic nerve of the right lower extremity are met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.123, 4.124, 4.124a, DC 8520 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board's decision constitutes a total grant of the benefits sought on appeal as to the Veteran's degenerative changes of the lumbar spine and associated incomplete paralysis of the bilateral lower extremities.  At the August 2013 Board video-conference hearing, the Veteran and his representative indicated that a grant of an initial combined rating of 60 percent for his degenerative changes of the lumbar spine and associated incomplete paralysis of the sciatic nerves of the bilateral lower extremities would satisfy his appeals as to those issues.  See transcript, pp. 12-14.  In this decision, the Board grants an initial combined rating of 70 percent for the Veteran's degenerative changes of the lumbar spine and associated incomplete paralysis of the sciatic nerves of the right and left lower extremities by increasing the rating for his low back disability to 50 percent, to include a 10 percent rating on an extraschedular basis for the degenerative changes of the lumbar spine and increasing the ratings for incomplete paralysis of the sciatic nerves of the right and left lower extremities to 20 percent each.  By consulting the combined ratings table, with consideration of the bilateral factor for the Veteran's lower extremities, the combination of a 50 percent and two 20 percent ratings result in a 70 percent combined rating.  38 C.F.R. §§ 4.25, 4.26.  Because the Board in the decision below grants the Veteran's claim for an initial combined rating of at least 60 percent for his degenerative changes of the lumbar spine and associated incomplete paralysis of the sciatic nerves of the right and left lower extremities, the decision constitutes a total grant of the benefits sought on appeal.  AB v. Brown, 6 Vet. App. 35 (1993).  As such, no discussion of VA's duty to notify or assist is necessary.

As discussed above, the Veteran contends that he is entitled to an initial combined rating of 60 percent for his degenerative changes of the lumbar spine and associated incomplete paralysis of the sciatic nerves of the bilateral lower extremities.  See transcript, pp. 12-14.  The Veteran testified that the pain and numbness in his legs is best characterized having a moderate disabling impact on each.  Id., p. 9.

Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations.  38 U.S.C.A. § 1155.  The disability must be viewed in relation to its history.  38 C.F.R. § 4.1.  A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation.  38 C.F.R. § 4.7.  Where, as here, the question for consideration is the propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  Fenderson v. West 12 Vet. App. 119, 126 (1999).

Under 38 C.F.R. § 4.71a, there are several diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected back disorders.

A low back disability may be rated pursuant to the general rating formula for diseases and injuries of the spine set forth in DCs 5235-5242.  The Veteran's current rating is under DC 5242.  Under the general rating formula, a 40 percent rating requires that the condition be manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  38 C.F.R. § 4.71a, Note 2.  Here, the Veteran's low back disability is already rated at the maximum schedular rating for limitation of motion of the low back.  Thus, a higher schedular rating on this basis is not available.  Further, given the range of motion findings, the evidence affirmatively shows that he does not have ankylosis.  As such a schedular rating in excess of 40 percent is not warranted.

Intervertebral Disc Syndrome is rated under Diagnostic Code 5243, based upon the frequency of incapacitating episodes.  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.

Sciatic nerve disabilities are rated at 80 percent where there is complete paralysis; the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  A 60 percent rating applies where there is severe incomplete paralysis with marked muscular atrophy.  A 40 percent rating applies where there is moderately severe incomplete paralysis.  Moderate incomplete paralysis is rated at 20 percent.  38 C.F.R. § 4.124a, DC 8520.

The Veteran is currently rated at 40 percent under DC 5242 for degenerative changes of the lumbar spine, and at 10 percent each under DC 8520 for incomplete paralysis of the sciatic nerves of the of the left and right lower extremities.

As discussed above, the Veteran testified that the pain and numbness in his legs is best characterized having a moderate disabling impact on each.  See transcript, p. 9.  The Veteran is competent to make this observation.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2).  Furthermore, a review of the Veteran's treatment records-including, most recently, a February 2013 VA examiner's addendum opinion finding positive straight leg raising and sciatic stretch signs-corroborates the Veteran's August 2013 testimony.  Based on the foregoing, the Board finds that the Veteran's report of moderate symptoms in his legs is both competent and credible.  As such, the Board grants separate 20 percent ratings for the left and right legs based on the Veteran's service-connected moderate incomplete paralysis of the sciatic nerve of both lower extremities associated with degenerative changes of the lumbar spine.  38 C.F.R. § 4.124a, DC 8520.

The Board further finds that the Veteran's service-connected degenerative changes of the lumbar spine do not warrant a schedular rating in excess of 40 percent.  In this regard, the Board notes that Note 1 of the General Rating Formula for Diseases and Injuries of the Spine (including DC 5242) instructs the rater to evaluate any associated objective neurologic abnormalities separately, under an appropriate diagnostic code.  By contrast, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (DC 5243) contains no such provision for associating neurologic abnormalities.  The regulation further instructs the rater to evaluate intervertebral disc syndrome either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.  Here, the Board finds that, in light of the decision to increase the Veteran's schedular ratings for his bilateral incomplete paralysis of the sciatic nerve of the lower extremities to 20 percent each, the Veteran is best served by continuing his 40 percent schedular rating under the General Rating Formula for Diseases and Injuries of the Spine (DC 5242) in combination with the bilateral 20 percent ratings under DC 8520, as these result in a combined rating of 64.  The number 64 results from adding 10 percent for the bilateral factor of the two 20 percent ratings, which combine to 36 under the ratings table.  38 C.F.R. §§ 4.25, 4.26.  The 36 plus 10 percent thereof, or 4 (an upward rounding from 3.6), results in a total of 40.  When the 40 percent disability rating for the Veteran's legs is combined with the 40 percent rating for his back disability under DC 5242, the 64 percent rating is reached.  Id.  When combined with the Veteran's other service-connected disabilities it provides a greater benefit (64 percent) than would a sole 60 percent rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (DC 5243).  Therefore, the Board finds that the Veteran is best aided by a continued schedular rating of 40 percent under DC 5242, and an increased schedular rating of 20 percent for each leg under DC 8520.  Furthermore, this satisfies the Veteran's appeal as expressed by the Veteran at his August 2013 hearing.

The Board further finds that additional compensation for bowel or bladder impairment is not warranted, based on the Veteran's testimony that he is having no problems therewith.  See August 2013 transcript, p. 5.

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

In an August 2012 remand, the Board directed that the Veteran's case be submitted to the VA Chief Benefits Director or the Director of the VA Compensation and Pension Service for consideration of an assignment of an extraschedular evaluation.  In April 2013, the requested opinion was obtained, and entitlement to an initial disability rating in excess of 40 percent for degenerative changes of the lumbar spine on an extraschedular basis was denied.  

As noted in the Board's August 2012 remand, when seen by VA providers in May 2012, the Veteran reported that the January 2011 back surgery did not relieve his pain and the VA orthopedic providers recommended an additional surgery of anterior lumbar fusion for the pain.  The Board added that a review of the VA treatment records from 2010 to May 2012 showed that he has required surgery and had a number of emergency room visits both before and since the January 2011 surgery to treat for significant pain symptoms.  In February 2011 he reported he had been out on "workers comp for several years" and at the August 2013 hearing he reported that he had not worked since July 2012 due to his back disability.  

After a referral has been made and the Director of the Compensation and Pension Service has made a determination regarding entitlement to an extraschedular rating, the Board has jurisdiction to review that determination on a de novo basis.  See Anderson v. Shinseki, 22 Vet. App. 423 (2009).  Here, in light of the impact of the Veteran's low back disability on his ability to work, the Board finds that an additional 10 percent rating is warranted, on an extraschedular basis, raising the Veteran's low back disability rating to 50 percent.

Finally, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The Board finds that the Veteran's symptoms were consistent since April 15, 2008, and the 50 percent rating for degenerative changes of the lumbar spine and 20 percent ratings for bilateral lower extremity moderate incomplete paralysis of the sciatic nerves accurately represent the current severity of his disabilities.  Therefore, no further staged ratings are warranted.


ORDER

Effective April 15, 2008, a 50 percent rating for degenerative changes of the lumbar spine, is granted, subject to the law and regulations governing payment of monetary benefits.

Effective April 15, 2008, an initial 20 percent disability evaluation, and no higher, for incomplete paralysis of the sciatic nerve of the left lower extremity associated with degenerative changes of the lumbar spine is granted, subject to the law and regulations governing the payment of VA monetary benefits.

Effective April 15, 2008, an initial 20 percent disability evaluation, and no higher, for incomplete paralysis of the sciatic nerve of the right lower extremity associated with degenerative changes of the lumbar spine is granted, subject to the law and regulations governing the payment of VA monetary benefits.


REMAND

Although the Board sincere regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  

The Veteran testified at his August 2013 Board hearing that his ability to work is impacted by all of his service-connected disabilities, and in particular his back disability and his PTSD.  See transcript, pp. 6, 10, 12-13, 17.  In this regard, the Board observes that in September 2012 he filed a claim seeking an increased rating for his PTSD, currently rated as 30 percent disabling.  Further, during the hearing, the Veteran reiterated that he sought a higher rating for condition.  The Veteran's PTSD claim is inextricably intertwined with his claim for TDIU.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue).  Although the RO has was issued him a letter addressing VA's duty to notify and assist in June 2013, to date he has not been afforded a VA psychiatric examination in conjunction with his pending PTSD claim.  On remand, he must be afforded that VA psychiatric examination to determine whether his PTSD has increased in severity.

As the appeal is being remanded for development, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received, and take appropriate measures to obtain those records.  Any additional, pertinent VA treatment records, including those from the VAMC in Atlanta, Georgia, should either be made accessible on Virtual VA or be printed and added to the file.  See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The RO should contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his service-connected disabilities, including his PTSD, that are not already of record.  The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file.  Any negative response should be in writing and associated with the claims file.

2.  Notify the Veteran that he may submit lay statements of the nature and severity of his PTSD and other service-connected disabilities, from himself as well as from other individuals who have first-hand knowledge of such symptoms.  He should be provided an appropriate amount of time to submit this lay evidence.

3.  After obtaining any outstanding treatment records regarding the Veteran's PTSD, provide him with an appropriate VA examination to determine the nature and severity of that disability.  The claims file must be made available to and be reviewed by the examiner and all necessary tests should be conducted.  The examiner should report all pertinent findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score.

The examiner should provide a complete rationale for all conclusions reached and should discuss those findings in relation to the pertinent lay and medical evidence of record.  The examiner should also discuss the impact that the Veteran's PTSD has on his ability to secure and maintain substantially gainful employment.

4.  Then adjudicate the Veteran's claim for a higher rating for his PTSD and thereafter consider whether a TDIU is warranted.  If any claim is not granted in full, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs