Citation Nr: 1329802 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 08-20 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a disability rating in excess of 10 percent prior to April 2, 2012, and in excess of 40 percent thereafter, for degenerative disc disease (DDD) of the lumbar spine with a history of mechanical low back pain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from July 1977 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge in November 2012. A transcript of that hearing has been associated with the claims file. The Board remanded the issue for further development in March 2013 to obtain a VA examination and medical assessment. The examination was provided in June 2013. Therefore, a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). FINDINGS OF FACT 1. Prior to November 10, 2011, even considering the Veteran's pain and corresponding functional impairment, his low back disability manifested with forward flexion of the thoracolumbar spine greater than 60 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees, without an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, and without incapacitating episodes. 2. From November 10, 2011, even considering the Veteran's pain and corresponding functional impairment, his low back disability manifested with forward flexion of 60 degrees, but without forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes. 3. From April 2, 2012, even considering the Veteran's pain and corresponding functional impairment, his low back disability manifested with forward flexion of less than 30 degrees, but without ankylosis or incapacitating episodes. 4. The objective range of motion findings affirmatively show that the Veteran does not have ankylosis of the low back and there is no medical evidence showing that his back is immobile. 5. The Veteran's low back disability has been productive of neurologic impairment of the right lower extremity that results in disability analogous to moderate incomplete paralysis of the sciatic nerve. 6. The Veteran's low back disability has been productive of neurologic impairment of the left lower extremity that results in disability analogous to moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for DDD of the lumbar spine from, but not prior to, November 10, 2011 to April 2, 2012, have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.71a, Diagnostic Code 5237 (2012). 2. The criteria for a disability rating in excess of 40 percent for DDD of the lumbar spine from to April 2, 2012, have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.71a, Diagnostic Code 5237 (2012). 3. The criteria for a separate 20 percent rating, and no more, for radiculopathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2012). 4. The criteria for a separate 20 percent rating, and no more, for radiculopathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letter dated in November 2006 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For an increased-compensation claim, 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. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). The Veteran was provided pertinent information in the above mentioned letter and other correspondence provided by the RO. Specifically, VA informed him of the necessity of providing, on his own or by VA, medical or lay evidence showing a worsening or increase in severity of the disability and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. He was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his increased rating claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ did specifically seek to identify any pertinent evidence not currently associated with the claims. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Increased Rating - Laws and Regulations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. 38 C.F.R. § 4.7. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in 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). The Veteran seeks an increased disability rating for his lumbar spine disability. Consideration of any associated radicular pain in the lower extremities is inherent in the evaluation of the claim on appeal for an increased rating for DDD of the lumbar spine. See Note (1) following 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Therefore, as part of the current appeal the Board has considered any separately evaluated objective neurologic abnormalities associated with the lumbar spine disability. Increased Rating - Lumbar Spine The Veteran's DDD of the lumbar spine is rated under Diagnostic Code 5237 for lumbosacral strain. Under that regulation, lumbosacral strain is rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the general rating formula, a 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or, 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 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. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. 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. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 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. Intervertebral disc syndrome is evaluated either on the total duration of incapacitating episodes over the past twelve months, or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with rating of all other disabilities, whichever method results in the higher rating. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year. A 40 percent rating requires that the disability be productive of incapacitating episodes having a total duration of at least four but less than six weeks per year. Finally, a maximum 60 percent rating is available when the condition is manifested by incapacitating episodes having a total duration of at least six weeks, during the past 12 months. Prior to April 2, 2012 Prior to April 2, 2012, the Veteran was afforded two VA examinations. The Veteran attended a VA examination in March 2007. The examiner reviewed the claims file and performed a thorough physical examination. The examiner noted that he received a TENS untie in August 2006. The examiner provided range of motion findings of flexion to 85 degrees, extension to 25 degrees, lateral flexion to 15 degrees bilaterally, and rotation to 10 degrees bilaterally. He noted pain on all movements. With repetition, pain is the main complaint. Range of motion findings on repetition limited flexion to 70 degrees, with no change in the other findings. The second VA examination occurred in May 2011. The examiner noted the Veteran's history and lay statements. He noted no incapacitating episodes, but did find limitation of motion. He did not provide specific range of motion findings. The examiner noted no abnormal spinal curvatures. He noted no muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour. In November 2011, a VA treatment record showed lumbosacral spine flexion of 60 degrees, and extension of 10 degrees. The spine had a normal curvature without scoliosis or kyphosis. Prior to April 2, 2012, the evidence must show forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or, 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. The evidence consistently shows no abnormal gait or spinal contour due to muscle spasm or guarding. Additionally, at no point is the combined range of motion 120 degrees or less. The Board notes however, that on November 10, 2011, the VA examiner found limitation of flexion to be 60 degrees. Forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees warrants a 20 percent disability rating. Therefore, the Board finds that the Veteran meets the criteria for a 20 percent disability rating as of November 10, 2011. Prior to that date, the evidence does not show forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or, 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. From April 2, 2012 In April 2012, the Veteran was afforded another VA examination. The examiner noted no incapacitating episodes. He reported that the Veteran used a cane to assist with ambulation. The examiner found that the Veteran stands forward bent 25 degrees and states that he is unable to bend. The Veteran had left lateral flexion to 5 degrees, right lateral flexion to 7 degrees, left rotation to 3 degrees, and right rotation to 4 degrees. In a November 2012 Social Security Administration examination, the Veteran's dorsolumbar spine showed flexion to 75 degrees, extension to 15, bilateral lateral flexion to 25 degrees, and bilateral lateral rotation to 10 degrees. The examiner did note complaints of pain during the testing. Finally, in June 2013, the Veteran was afforded his last VA examination. The examiner reviewed the claims file and responded to the Board's March 2013 remand instructions. He found that the Veteran is in moderate lower back pain constantly, which is aggravated by standing, sitting, or walking. He must constantly move around and change his posture to find a comfortable position. He uses a cane constantly to stand and walk as the right leg may give out without warning. He noted no incapacitating episodes that require bed rest as prescribed by a physician. The Veteran's range of motion findings were flexion to 20 degrees with pain at 0, extension to 15 degrees with pain at 0, right lateral flexion to 0 degrees, left lateral flexion to 5 degrees with pain at 0, right lateral rotation to 0 degrees, and left lateral rotation to 5 degrees with pain at 0. The Veteran was unable to perform repetitive use testing with three repetitions as he was in moderately severe low back pain and needs a walking cane to stand up and move around. The examiner noted additional functional loss or impairment of the back due to pain, to include less movement than normal, weakened movement, excess fatigability, pain, disturbance of locomotion, and interference with sitting, standing, or weight-bearing. DeLuca The Board notes that the criteria set forth in DeLuca have been addressed. Although the Veteran experiences pain with motion, this pain has not caused the required symptoms to meet the criteria for a higher disability rating. 38 C.F.R. § 4.71a. The VA examiners addressed the criteria set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995), and specifically noted any change in range of motion findings due to pain or repetition. These findings were considered in the application of the evidence to the criteria; however, the Board finds that even considering the effect of pain and repetition, the Veteran's functioning does not more closely approximate a higher rating for the low back beyond the ratings assigned in this decision. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board acknowledges the Veteran's representative's assertion that the Veteran's pain, which extremely limits his range of motion, is equivalent to ankylosis of the spine. Although the June 2013 examiner did not directly address ankylosis, the representative's assertions are belied by the examiner's objective range of motion findings. The Board notes that, although the Veteran's limitation of motion is severe, the Veteran's spine is not "fixed." In this regard, the Board highlights that the Court, citing Dorland's Illustrated Medical Dictionary (28th ed. 1994), has repeatedly recognized that, at least for VA compensation purposes, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 528 (1999); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). The Board finds that the Veteran's disability, despite extreme limitation of motion, does not meet the criteria for ankylosis of the spine. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim in excess of that acknowledged above, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002). Neurological Associations As provided in Note (1), the Board is directed to evaluate any associated objective neurological abnormalities under an appropriate diagnostic code. 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012). Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent rating requires moderate incomplete paralysis of the sciatic nerve; a 40 percent rating requires moderately severe incomplete paralysis; a 60 percent rating requires severe incomplete paralysis with marked muscular atrophy; an 80 percent rating requires complete paralysis of the sciatic nerve. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. The Veteran has reported radiating pain and weakness down the right and left legs throughout the period on appeal. In March 2007, the Veteran reported pain radiating into both hips and all the way to the foot in the right leg. He also noted weakness in the right extremity. The examiner diagnosed L5-S1 radiculopathy. An April 2007 treatment record shows pain radiating down both legs. In August 2009, the Veteran was diagnosed with low back pain with radiculopathy. In May 2011, the Veteran complained of radiating pain in both legs. Private treatment records consistently show diagnosis and treatment of lumbar radiculopathy. In an April 2012 VA examination, although the examiner noted no radiculopathy, he found a positive straight leg raising test and decreased hip strength. The June 2013 VA examination specifically addresses the level of the Veteran's radiculopathy. The examiner noted that the Veteran's lower extremity neurological impairment is related to the Veteran's lumbar spine disability. He noted decreased muscle strength of the lower extremities, a hypoactive reflex examination of the knee and ankle, a decreased sensory exam of the upper anterior thigh and the thigh and knee, as well as a positive straight leg raising test. The examiner noted moderate pain, paresthesias and/or dysthesias, and numbness of the lower extremities. He indicated that the radiculopathy was moderate. Thus, the Veteran has moderate radiculopathy to include pain, tingling, and numbness bilaterally. The Board finds that based on the lay and medical evidence that the Veteran has moderate radiculopathy of the right and left lower extremities. Resolving any doubt in the Veteran's favor, the Board finds that the medical and lay evidence supports his entitlement to separate 20 percent ratings, and no more, under Diagnostic Code 8520, for radiculopathy of the right and left lower extremities. The Board must consider other neurological associations. The competent evidence does not reflect any other objective neurologic abnormalities associated with the lumbar spine disability, so as to warrant a separate evaluation on that account. Although the Veteran reported a voiding dysfunction to include incontinence, the VA examiner in June 2013 found that the Veteran's bladder incontinence is not related to his lumbar spine disability. The examiner noted that symptoms are due to benign prostatic hypertrophy. The Veteran acknowledged treatment for BPH for the prior five years and the medical evidence shows prostatitis as confirmed by CT scan. Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2012). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's low back disability is manifested by pain and limitation of motion, while his radiculopathy is manifested by numbness, tingling, and pain. These manifestations are contemplated in the applicable rating criteria. The Board does not find that the Veteran has described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his description of low back and radiculopathy symptomatology is consistent with the degree of disability addressed by such evaluations. Therefore, the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Finally, the Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran's entitlement to TDIU was separately adjudicated and granted in a March 2013 Board decision. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (distinguishing Rice). As such, the Veteran's entitlement to a TDIU need not be addressed further by the Board in this decision. ORDER Subject to the law and regulations governing payment of monetary benefits, a disability rating in excess of 20 percent for DDD of the lumbar spine from, but not prior to, November 10, 2011 to April 2, 2012, is granted. Entitlement to a disability rating in excess of 40 percent after April 2, 2012 for DDD of the lumbar spine is denied. Subject to the law and regulations governing payment of monetary benefits, a separate 20 percent disability rating, but no more, for right lower extremity lumbar radiculopathy is granted. Subject to the law and regulations governing payment of monetary benefits, a separate 20 percent disability rating, but no more, for right lower extremity lumbar radiculopathy is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs