Citation Nr: 1331048 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 07-32 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating in excess of 20 percent prior to September 7, 2007 for spinal stenosis of the lumbar spine. 2. Entitlement to a rating in excess of 40 percent as of November 1, 2007 for spinal stenosis of the lumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1954 to October 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2006 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In October 2010, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A copy of the transcript is of record. In May 2012, the Board, in pertinent part, (1) denied a rating in excess of 20 percent prior to September 7, 2007 for spinal stenosis of the lumbar spine (lumbar spine disability) and (2) denied a rating in excess of 40 percent as of November 1, 2007 for the service-connected lumbar spine disability. The Veteran appealed these identified denials to the United States Court of Veterans Claims (Court). By order dated November 2012, the Court granted a Joint Motion for Remand (JMR), vacated the May 2012 Board decision for these issues alone, and remanded them for compliance with the terms of the JMR. No other issue fully addressed by the Board in May 2012 is before the VA at this time. In the May 2012 decision, the Board also remanded the issue of entitlement to a total disability rating based upon individual unemployability (TDIU), to include extra-schedular consideration for the service-connected lumbar spine disability, for additional development and adjudicative action. That issue has not yet been returned to the Board for further appellate review and should be addressed by the AMC/RO. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. As noted in the May 2012 Board decision, the issue of entitlement to service connection for an acquired psychiatric disorder as secondary to service-connected spinal stenosis of the lumbar spine with radiculopathy due to spondylolisthesis has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ) (it appears that the claims file was with the Court and, therefore, the RO/AMC did not have the opportunity to review this issue). Therefore, this matter is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of a rating in excess of 40 percent as of November 1, 2007 for the service-connected lumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. Prior to September 7, 2007, the service-connected lumbar spine disability more closely approximated manifestations of range of motion far greater than permitted for a rating in excess of 20 percent, even when considering the DeLuca criteria and 38 C.F.R. §§ 4.40, 4.45. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent prior to September 7, 2007 for spinal stenosis of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5243 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2 (2012); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran seeks a rating in excess of 20 percent for service-connected spinal stenosis of the lumbar spine with radiculopathy due to spondylolisthesis (hereafter "lumbar spine disability" or "back problem"), which was initially rated under 38 C.F.R. § 4.71a, DC 5293, intervertebral disc syndrome (IVDS). Since the initial rating, VA has revised the schedular criteria for rating IVDS. Currently, IVDS is rated under 38 C.F.R. § 4.71a, DC 5243, which provides for rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under the General Formula, a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is 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 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. 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 is zero to 30 degrees, and left and right lateral rotation is 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). See also 38 C.F.R. § 4.71a , Plate V. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). When rating IVDS based on incapacitating episodes, a 20 percent rating contemplates incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum 60 percent rating contemplates incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. For purposes of evaluations under DC 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Also potentially applicable are DCs 5238, spinal stenosis, and 5239, spondylolisthesis. However, both diagnostic codes are also rated under the General Formula. 38 C.F.R. § 4.71a. Increased Rating prior to September 7, 2007 Pursuant to the November 2012 JMR, the Court held that the Board erred by (1) not fully considering whether October 2006 private treatment records, which demonstrate the Veteran suffered from urinary hesitancy and nocturia several times a night, warrants a separate rating for these neurological residuals, (2) focusing on the actual criteria for evaluating disorders of the spine without considering entitlement to a separate rating for bladder impairment, and (3) providing inadequate statement of reasons or bases. VA received the Veteran's claim for an increased rating in October 2005. In his claim he reported pain and loss of feeling in his legs as well as foot drop. Other symptoms included pain despite taking pain medication, weakness, stiffness, and episodes requiring rest. His doctor suggested surgery. A September 2005 letter from the Veteran's attending physician, Dr. W. L., M.D., states that the Veteran has had progression in his underlying spinal stenosis and nerve entrapment of the fourth lumbar nerve bilaterally. He has progressive pain radiating into both legs with weakness of both legs and alteration in his activity due to discomfort. An accompanying neurological report from Dr. D. M. T., M.D. (Dr. D. T.), shows straight leg testing was mildly positive bilaterally and sciatic stretch signs were mildly positive on the left. The sensory examination showed some numbness down his anterior lateral claves to the dorsum of his feet. The magnetic resonance imaging (MRI) scan shows grade I spondylolisthesis at L4-5 with associated spinal stenosis secondary to facet arthropathy. He had minor spinal stenosis at L3-4 and facet disease at L5-S1 with degeneration of that disc but no spondylolisthesis. The impression was bilateral L5 radiculopathies, left greater than right, presumed secondary to his spinal stenosis and spondylolisthesis of L4-5. The Veteran had a VA examination in November 2005. The examiner reviewed the MRI from Dr. D. T. The Veteran reported soreness, stiffness and pain with radiation to the legs. Radiation to the left leg is constant, with pain, numbness and tingling radiating constantly to the left great toe. Radiation to the right leg is intermittent with pain and numbness extending to the right great toe. He said back pain increases if sitting more than 30 to 60 minutes, he forward bends, or lifts greater than 25 pounds. Lying in bed for more than 5 hours and standing longer than 5 minutes increases pain. His treatment included pain medication, chiropractic care, heat, ice, and physical exercises. He retired in 1993 from the education field. Due to his back, he has had to limit recreational and home activities and chores. He reported suffering no incapacitating episodes in the prior year. The physical evaluation revealed a 5.5 inch long by 1/8 inch wide scar on the Veteran's back that showed no palpable spasm or tenderness to palpation. The bilateral straight leg test showed radiating pain to the legs at 45 degrees. Knee jerks were normal while ankle jerks were 1+/4+ on the right and 2+/4+ on the right. He had diminished pinprick sensation over the great toe dorsally bilaterally. The examiner found no evidence of foot drop. Range of motion testing showed right rotation to 48 degrees, left rotation to 60 degrees, right lateral flexion was to 20 degrees, and left lateral flexion was to 18 degrees. No pain was observed on movement. Forward flexion measured to 83 degrees with pain starting at 60 degrees. Extension pain manifested at 20 degrees. The examiner found no additional limitations with repetitive motion, providing evidence against this claim. A December 2005 letter from the Veteran's chiropractor, Dr. M. W., D. C., noted his worsening back condition. Specifically, he stated that the Veteran's condition interferes with his activities of daily living (ADLs), and causes pain and weakness in the lower extremities, sleep problems, and disruption with daily and family activities. In September 2006, Dr. W. L. sent another letter indicating that the Veteran's condition had worsened. Symptoms included limited sleep, chronic pain leading to increased fatigue, and inability to complete chores and participate in activities. Radicular pain was noted as daily with a burning quality and associated loss of muscle strength in both legs. He stated that the Veteran suffered incapacitating episodes of a duration of more than four weeks in the past year. However, he defined incapacitating as not requiring total bed care but as causing significant interruption in ADLs. In this case, while the Veteran was clearly having problems with his back during this time period, providing the basis for a 20 percent evaluation, the evidence does not show that a rating in excess of 20 percent is warranted prior to September 7, 2007 under the General Formula. See 38 C.F.R. § 4.71a, DC 5243. For a rating in excess of 20 percent, the evidence must show flexion limited to 30 degrees or less or favorable or unfavorable ankylosis of the entire thoracolumbar spine. Even considering the Veteran's complaints of pain, weakness, stiffness, impact on his ADLs, 38 C.F.R. §§ 4.40 and 4.45 criteria, and other DeLuca criteria, the Board finds that his range of motion is far greater than allowed for an increased rating. The evidence does not show any type of ankylosis of the spine and also fails to show that he suffered incapacitating episodes as defined under 38 C.F.R. § 4.71a, DC 5243, Note 1. Consequently, the Board cannot find that a rating in excess of 20 percent is warranted prior to September 7, 2007. Pursuant to the November 2012 JMR and rating criteria for the spine, the Board also considers whether a separate disability rating may be warranted for any period due to any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1). During the period on appeal prior to September 7, 2007, the Board acknowledges the Veteran's complaints of radicular pain in the lower extremities. In an August 2007 rating decision, the RO granted service connection for radiculopathy of the bilateral lower extremities associated with the service-connected lumbar spine disability, each assigned at 10 percent disabling, effective September 29, 2005. With regard to any other associated objective neurological abnormalities related to the service-connected lumbar spine disability, the Board acknowledges that October 2006 private treatment records from Dr. W. L. note urinary hesitancy and nocturia several times per night. Nevertheless, Dr. W. L. assessed the Veteran with urinary urgency and did not render a distinct diagnosed disability for a neurological abnormality, particularly regarding bladder impairment, as due to the service-connected lumbar spine disability. Furthermore, the Board notes that the Veteran denied any bowel or bladder problems at the November 2005 VA examination for the spine, providing some evidence against this claim of high probative value. Beyond the above, Dr. W. L. also noted no bowel or bladder disturbance at September 2005 and August 2007 private treatment sessions for the Veteran's back pain, providing more evidence against this claim during this time period. Thus, the Board finds that a separate disability rating is not warranted for any time during the appeal period prior to September 7, 2007 for any other associated objective neurological abnormality, including bladder impairment. In this regard, it is important for the Veteran to understand that the question of whether the Veteran should receive more compensation for this disability after September 7, 2007 is not before the Board at this time, For the reasons and bases discussed above, the Board finds that the evidence is against the assignment of a rating in excess of 20 percent prior to September 7, 2007. An analysis of extra-schedular consideration for the service-connected lumbar spine disability was remanded with the issue of entitlement to TDIU in the May 2012 Board decision. Again, that issue has not yet been returned to the Board for further appellate review. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by October 2005 and June 2008 letters. In these letters, VA informed the Veteran that in order to substantiate a claim for an increased evaluation for his service-connected disability, the evidence must show that such disability has gotten worse. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. These letters also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the June 2008 letter included the type of evidence necessary to establish a disability rating and effective date. While the June 2008 letter was not sent prior to the rating decisions on appeal, the Veteran has not been prejudiced by the timing of the notice because any deficiency was cured when the RO readjudicated the matter in a May 2009 supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliance VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or SSOC, is sufficient to cure a timing defect). Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes private treatment records, lay statements, buddy statements, and November 2005 VA examination. The VA examiner reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board notes that the VA examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In October 2010, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge, and the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER A rating in excess of 20 percent prior to September 7, 2007 for spinal stenosis of the lumbar spine is denied. REMAND The Board is concerned that the complex nature of this appeal will lead to delay in the adjudication of the Veteran's case. It appears that as the case was before the Court the RO/AMC was unable to undertake the actions requested by the Board in May 2012. A remand is required in this case to ensure there is a complete record upon which to decide the issue of a rating in excess of 40 percent as of November 1, 2007 for the service-connected lumbar spine disability. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Review of the record indicates a VA Disability Benefits Questionnaire (DBQ) general medical examination, to include evaluation fo the service-connected lumbar spine disability, was requested in May 2012 (this may have been undertaken in order to fulfill the remand requirements of the Board from this May 2012 decision, but this is not clear). However, there is no indication in the physical claims file or the file on the "Virtual VA" system as to whether that examination request was fulfilled, and if so, the examination report is not of record. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO/AMC should insure that the remand directives of May 2012 are fully implemented including, but not limited to, addressing the new issue cited in the introduction of this decision and the Board's decision of May 2012, and addressing the TDIU issue fully (see pages 20 and 21 of the Board's May 2012 decision). 2. Provide documentation in the claims file as to whether or not the May 2012 request for a VA DBQ general medical examination was completed or cancelled. If the request was completed, obtain and associated with the claims file a copy of that VA examination report. 3. Thereafter, the issue of a rating in excess of 40 percent as of November 1, 2007 for spinal stenosis of the lumbar spine should be readjudicate along with the TDIU claim. As noted within the JMR of November 2012, the RO/AMC should consider, based on the new evidence, whether a separate disability rating may be warranted for any period after November 2007 due to any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1). If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matter or 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). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs