Citation Nr: 1330321 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-19 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for right lower extremity radiculopathy. 2. Entitlement to service connection for left lower extremity radiculopathy. 3. Entitlement to an increased rating for a low back disorder with degenerative changes evaluated as 20 percent disabling prior to May 8, 2009. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to May 1971. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from an April 2008 rating decision of the VA Regional Office in Indianapolis, Indiana. In February 2013, the Board remanded the issues on appeal for additional development. The case is now once more before the Board for appellate review. The Virtual VA electronic claims file has been reviewed; a review of the documents in such file reveals that it contains VA treatment records pertinent to the issues on appeal. In September 2007, the Veteran was found to show signs of aortic calcification on chest x-ray study. This raises the issue of entitlement to service connection for coronary artery disease to include secondary to herbicide exposure. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the RO for appropriate consideration. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has current right lower extremity radiculopathy due to a disease or injury in service, or service-connected disability. 2. The preponderance of the evidence is against finding that the Veteran has current left lower extremity radiculopathy due to a disease or injury in service, or service-connected disability. 3. Prior to May 8, 2009, the Veteran's low back disorder with degenerative changes was not manifested by forward thoracolumbar flexion to 30 degrees or less, or by favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Right lower extremity radiculopathy was not incurred or aggravated inservice, and it is not caused or aggravated by a service connected disorder. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 2. Left lower extremity radiculopathy was not incurred or aggravated inservice, and it is not caused or aggravated by a service connected disorder. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. 3. Prior to May 8, 2009, the criteria for an evaluation for a low back disorder with degenerative changes in excess of 20 percent were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In March and July 2007 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, including what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters also provided notice of how disability ratings and effective dates are determined. The claims were last readjudicated in May 2013. Hence, any defect with regard to the timing or content of the notice to the appellant is harmless. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations for these issues are in order. Pursuant to the February 2013 remand, the Appeals Management Center (AMC) sent the Veteran a letter requesting that he submit additional information regarding treatment for radiculopathy. The AMC acquired all relevant VA treatment records and afforded the Veteran a VA examination in April 2013; all treatment records and examination reports have been associated with the claims file or Virtual VA electronic file. Hence, the RO/AMC has substantially complied with the February 2013 remand instructions, and no further action is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Lower Extremity Radiculopathy The Veteran is claiming entitlement to service connection for left and right lower extremity radiculopathy. The Veteran has described having daily, severe leg pain which he alleges almost preclude him from functioning. He has stated that he did not have leg pain in the service, but that the pain only manifested later in life, after his back degenerated, and that his legs were affected by the degeneration of his spine. In a February 2013 Informal Hearing Presentation, the representative argued that the Veteran's leg pain could have been caused by his service-connected low back disorder. Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be demonstrated either by showing direct service incurrence or aggravation, as discussed below, or by use of applicable presumptions, if available. 38 C.F.R. § 3.303(a). In order to prevail on the issue of entitlement to direct service connection there must be competent evidence of a current disability; competent evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Secondary service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id; see also 38 C.F.R. § 3.310(b). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In this case, other than a November 1970 report of weakness in the knees after prolonged squatting, the Veteran's service treatment records are silent for any complaints or treatment affecting the lower extremities. The Veteran's VA treatment records show that he has reported severe leg pain on several occasions. In September 2010, the Veteran stated that he had been having leg pain for years. A January 2011 VA examination of the appellant's spine noted that the appellant denied a history of radiating pain. Lower extremity reflexes were found to be within normal limits, and the Veteran was diagnosed with fibromyalgia. At a June 2011 VA examination the appellant reported that he had been diagnosed with fibromyalgia in 2006. The Veteran reported "hot stabbing pains in legs up to his knees" in April 2012. He was again diagnosed with fibromyalgia. In January 2013, he reported ankle pain, and in April 2013, he reported that his leg pain had recently worsened to the extent that he could "hardly stand or walk." The treatment records contain no diagnoses or findings of radiculopathy. The Veteran's private treatment records show that in August 2006, he complained of continuous dull leg pain, stiffness, and intense left hip and heel pain. He also reported symptoms of depression and pain in other parts of his body. He denied any numbness, tingling, or symptoms of restless legs. The physician diagnosed fibromyalgia with a mood disorder. In September 2007, the Veteran was given a VA examination of the nerves and spine by a physician. The Veteran reported having pain and numbness down both legs for over five years, with occasional flare-ups, as well as a "funny-like sensation going down both of his legs." On examination of the legs, the examiner found no muscle atrophy, no abnormal muscle tone, no impact on function by nerve disorder, and non-normal gait and balance. The appellant's reflexes were normal. The examiner diagnosed chronic back pain without radiculopathy. In April 2013, the Veteran was afforded VA examinations by a physician examiner for radiculopathy, the thoracolumbar spine, and fibromyalgia. The examiner reviewed the claims file and examined the Veteran in person. Examination findings of the Veteran's nerves and radicular groups were normal. An electromyogram of the lower extremities revealed normal findings. She found that the Veteran had no radicular pain or any other signs or symptoms of radiculopathy. The examiner stated that the Veteran "does not currently have diagnostic testing consistent with radiculopathy and the degenerative changes seen on his lumbosacral spine do not appear advanced in severity at this time." The examiner stated that the claimed condition was as likely as not related to a service-connected condition, but clearly explained that she was referring to his symptoms of pain and numbness in his bilateral lower extremities, which she found to be likely caused by fibromyalgia. The above-cited evidence reveals no competent medical evidence or opinion indicating that the Veteran currently has, or at any time during the appellate term has had, left or right lower extremity radiculopathy. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131; Brammer v. Derwinski, 3 Vet. App. 223 (1992). Federal statutes only permit payment for disabilities existing on and after the date of application for such disorders. Id. In the absence of proof of the presently claimed disability, there can be no valid claim. Thus, where, as here, medical evidence indicates that the Veteran does not have left or right lower extremity radiculopathy, there is no valid claim for service connection. See Gilpin, 155 F.3d 1353; Brammer, 3 Vet. App. at 225. In reaching this decision the Board finds that both the September 2007 and April 2013 VA examiners provided medical opinions that were based on personal examination of the Veteran. They afforded full consideration of his documented medical history and his assertions, and the opinions are consistent with other evidence of record. Hence, the Board accepts these opinion as fully persuasive evidence on the current disability question. See, e.g., Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.). Neither VA examiner found that the Veteran currently had a diagnosis of lower extremity radiculopathy, and the April 2013 examiner explained that the appellant's symptoms were due to fibromyalgia, and not to radiculopathy. The only evidence indicating that the appellant may have bilateral lower extremity radiculopathy lies within the lay statements of the Veteran himself. To the extent that the appellant's assertions are advanced to establish a current diagnosis, such evidence provides no basis for allowance of the claim. The Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge such as symptoms of leg pain or numbness. Questions of medical diagnosis and causation of disabilities not, however, capable of lay observation or other sensory perception and are within the province of medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a layperson without the appropriate medical training or expertise, the Veteran is not competent to render a probative opinion on such a medical matter. Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, lay assertions as regarding either the nature or etiology of the Veteran's complaints have no probative value. While the Veteran clearly suffers from lower extremity numbness and pain, the only diagnosis he has received which accounts for these symptoms is fibromyalgia. The Veteran is service connected for that disorder, and he receives the maximum allowable schedular rating for that disability. To the extent that the Veteran may be claiming separate service connection for his symptoms of pain and numbness in his lower extremities due to fibromyalgia, this disorder and its symptoms are already compensated and assigned a rating which encompasses the symptoms affecting his entire body. 38 C.F.R. § 4.71a, Diagnostic Code 5025 (2012). A Note to Diagnostic Code 5025 provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. Id., at Note. The Veteran's assigned rating for fibromyalgia therefore clearly includes any rating for fibromyalgia in the lower extremities. A separate rating for lower extremity pathology due to fibromyalgia cannot be granted. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (VA may not assign multiple ratings for duplicative or overlapping symptomatology.). For all the foregoing reasons, entitlement to service connection for right and left lower extremity radiculopathy is denied. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). Low Back Disorder The Veteran claims entitlement to a rating higher than 20 percent for a low back disorder with degenerative changes prior to May 8, 2009. The Veteran was granted service connection for that disorder in April 2008 and assigned an evaluation of 10 percent, effective January 6, 2006. The Veteran submitted a notice of disagreement with the initial rating, and in a March 2009 rating decision the Veteran's initial evaluation was raised to 20 percent. The Veteran then submitted a statement with his May 2009 substantive appeal which the RO interpreted to indicate that his low back disorder had become worse since his last VA examination. In an August 2011 rating decision VA raised the Veteran's rating for the disorder to 40 percent, effective May 8, 2009. In February 2013, the Veteran withdrew his claim of entitlement to a rating in excess of 40 percent for a low back disorder since May 8 2009. The current claim on appeal therefore concerns only what evaluation is warranted for the Veteran's low back disorder prior to May 8, 2009. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321, an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as a marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to the absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. Arthritis due to trauma is to be rated under the criteria for degenerative arthritis, which requires the application of the appropriate diagnostic codes for the specific joints involved when arthritis is confirmed by X-ray findings and there is a measurable limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is assigned where the evidence shows forward thoracolumbar flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of thoracolumbar motion 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. 38 C.F.R. § 4.71a. A 40 percent rating is assigned when there is forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. Normal thoracolumbar flexion is from zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right rotation are zero to 30 degrees. The 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Note 2; Plate V. Where there is a question as to which of the 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 this case, the Veteran was assigned a rating of 20 percent prior to May 8, 2009. The Veteran has asserted that he had near constant lower back pain which required him to take pain medication three times per day in order to function. He has submitted statements indicating that he had difficulty lifting more than 20 pounds, that he had back pain after riding in the car for more than 20 minutes, that he could not sit for very long without having to stand, and that the pain made it difficult to do everyday things, such as tying his shoes, driving, or playing with his grandchildren. The Veteran's private medical records show that he first complained of back pain in November 2005. Later that month in a follow-up appointment, he reported that his flank pain was almost gone. In January 2007, the Veteran reported that he had been having back, neck, and muscle pain for several years. He described the pain as constant, "achy, throbby, and stiffening." The Veteran's records show that he has also been receiving treatment for nonservice connected cervical spondylosis, neck pain, and headaches. The Veteran's VA treatment records include complaints of low back pain in May 2006 and November 2008. The Veteran was afforded a VA examination in September 2007. He reported having problems with his back on and off since separation from service. He stated that he was only able to sit for 30 minutes, walk for 20 minutes, or drive for an hour before he had to get out and stretch. He stated that his sleep was chronically interrupted by back pain. On physical examination, the examiner found that the Veteran could flex his spine to 60 degrees and extend it to 15 degrees. He could spend bend his spine right and left to 30 degrees and demonstrated torque right and left at 30 degrees. Following three repetitive motions, the Veteran had some back pain but no significant loss of motion. There was no evidence of motor weakness. X-rays taken in conjunction with the examination showed anatomic lateral alignment of the lumbar spine, mild endplate spurring, preserved intervertebral disc spaces and vertebral body heights, grossly intact neural foramina, and aortic calcification. There was slight sclerosis at the facet joints of L5-S1 and L4-L5, indicative facet arthritis. The examiner ultimately diagnosed the Veteran with chronic back pain without radiculopathy. After carefully reviewing the evidence of record, the Board finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 20 percent prior to May 8, 2009. In order to warrant an evaluation in excess of 20 percent, the evidence must show that the Veteran's low back disorder was manifested by either forward thoracolumbar flexion to 30 degrees or less, or favorable or unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. There is no evidence prior to May 8, 2009 that the Veteran had thoracolumbar forward flexion measuring 30 degrees or less or that he has had ankylosis of the entire thoracolumbar spine at any time. The only range of motion testing contained in the record for appellate term at issue dates from the Veteran's September 2007 private examination which showed forward flexion to 60 degrees. While the September 2007 VA examination findings indicated that the Veteran reported frequent severe spinal pain and did have some restricted motion, there were no findings that motion was so restricted that the limitation would allow for the assignment of a higher disability rating than 20 percent. The Veteran's private and VA records also indicate that he had frequent lower back pain. These records, however, do not include any range of motion measurements or specific allegations of functional limitations due to his low back disorder. Considering other potential alternative rating criteria, the Veteran has never alleged having any incapacitating episodes, nor has he been diagnosed with intervertebral disc syndrome, which might allow for consideration under the rating criteria for intervertebral disc syndrome. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). In considering DeLuca (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain), the evidence of record preponderates against finding that the Veteran has pain symptoms that are not contemplated by the 20 percent evaluation assigned. Moreover, under the regulation governing the evaluation of lumbar disorders, the general rating criteria are controlling regardless of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine in the absence of further, measurable functional limitations. 38 C.F.R. § 4.71a. While the appellant clearly has reported regular pain during his daily life, the VA examiner did not find additional functional impairment that is not contemplated in the rating assigned. The September 2007 examiner found that the Veteran had no significant further limitation of motion after three repetitive motions. The Veteran has also not alleged being prevented from daily functioning due to pain or stiffness. The Veteran's range of motion restrictions due to pain have therefore been considered and are included within the rating criteria applied. The Board has considered a referral for extraschedular consideration but finds that prior to May 8, 2009 the Veteran's low back disorder did not present an exceptional disability picture. See 38 C.F.R. § 3.321(b)(1). The schedular rating criteria considered in this case more than adequately describe the Veteran's functional limitations and symptomatology regarding his lumbar spine, which means his disability picture is contemplated by the rating schedule and those criteria are adequate to address his symptoms. Id.; Thun v. Peake, 22 Vet. App. 111 (2008). The evidence of record indicates that the Veteran has been employed through the appellate term, and at no time has he alleged that his low back disorder prevented him from working or caused him to miss work. The assigned scheduler rating therefore adequately addresses, as far as can practicably be determined, his average impairment of earning capacity. See 38 C.F.R. § 4.1. In making this determination, the Board has again considered the applicability of the benefit of the doubt rule. 38 U.S.C.A. § 5107(b). However, as a preponderance of the evidence is against the claim for entitlement to a rating higher than 20 percent for a low back disorder prior to May 8, 2009, this rule does not apply, and the claim must be denied. ORDER Entitlement to service connection for right and lower extremity radiculopathy is denied. Entitlement to an increased rating for a low back disorder with degenerative changes evaluated as 20 percent disabling prior to May 8, 2009 is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs