Citation Nr: 1332082 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-44 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a higher initial rating for postoperative lumbar laminectomy with degenerative disc disease, spondylosis, and scoliosis (the back disability), currently rated 20 percent disabling. 2. Entitlement to an initial increased rating for Meniere's disease currently rated as 10 percent disabling on the basis of vertigo and 10 percent disabling on the basis of tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from June 2000 to December 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Salt Lake City, Utah, Department of Veterans Affairs (VA) Regional Office (RO). This decision granted the claims of service connection for a back disability (10 percent disabling) and Meniere's disease (noncompensable); effective December 10, 2007. In October 2009, the RO increased the initial rating for the back disability to 20 percent disabling and established separate ratings for vertigo associated with Meniere's disease and tinnitus in the right ear associated with Meniere's disease; each effective December 10, 2007. The RO has also granted a separate rating for tinnitus, so that the Veteran is currently receiving two 10 percent ratings for tinnitus. The issue of entitlement to higher initial ratings for Meniere's disease is REMANEDE to the RO via the Appeals Management Center (AMC); and is discussed in the REMAND section of this decision. FINDING OF FACT Throughout the rating period on appeal, the service-connected back disability has been manifested by forward flexion well in excess of 30 degrees; there has been no showing of ankylosis or associated neurologic impairment other than radiating pain to each lower extremity from December 10, 2007 to October 26, 2009. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the orthopedic manifestations of the service connected back disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5235-43 (2013). 2. The criteria for a 10 percent rating for the neurologic manifestations of the back disability involving the left lower extremity were met from December 10, 2007 to October 26, 2009. 38 U.S.C.A. § 1155, 5107(b); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013). 3. The criteria for a 10 percent rating for the neurologic manifestations of the back disability involving the right lower extremity were met from December 10, 2007 to October 26, 2009. 38 U.S.C.A. § 1155, 5107(b); 38 C.F.R. § 4.124a, Diagnostic Code 8520 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The Veteran's appeal arises from disagreement with the initial rating following the grant of service connection. Once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of relevant records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case all relevant service and post service treatment records have been obtained. The Veteran has been afforded examinations, the reports of which contain all findings needed to rate her back disability. There is no evidence of a change in the disability since the most recent examination. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment and examination. Moreover, the statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002). Rating Criteria for Back Disabilities Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes (DCs). 38 C.F.R. § 4.27 (2013). Back disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine for DCs 5235-5243 provides for the rating of disabilities of the spine. 38 C.F.R. § 4.71a. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the relevant parts of the formula are as follows: Unfavorable ankylosis of the entire spine (100 percent); Unfavorable ankylosis of the entire thoracolumbar spine (50 percent); Forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine (40 percent); and Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gaiter abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent). 38 C.F.R. § 4.71a. Neurologic impairment associated with a back disability is rated separately and combined with the rating for orthopedic impairment. 38 C.F.R. § 4.71a, Note (1). Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 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. 38 C.F.R. § 4.71a, Note (2). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flareups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2013). To warrant additional compensation beyond the minimum compensable level "pain must affect some aspect of the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet App 32, 43 (2011). Intervertebral Disc Syndrome (IVDS) is evaluated 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. 38 C.F.R. § 4.71a, DC 5243 (2013). Note (1) of 38 C.F.R. § 4.71a, DC 5243 states that 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. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (2013). Also, the entire rating period is considered for the possibility of staged ratings. Consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease, disability, and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2013). At no point has the Veteran been diagnosed with IVDS or prescribed bed rest by a physician. 38 C.F.R. § 4.71a, DC 5243. The Veteran's back disability is; therefore rated under the General Formula. Id. Evidence The Veteran contends she is in pain daily and cannot stand, sit, walk, lie down for any length of time. This has caused discomfort in all aspects of life and loss of sleep due to pain (see October 2008 statement). In her November 2009 appeal, she stated that waking up and getting out of bed was painful. She used a TENS unit and Motrin. She switched careers (she worked in law enforcement in the military and now was an accounting clerk) due to her back pain. She could only carry, drive and vacuum for short periods before taking a break. The Veteran filed her claim while she was still on active duty. A July 2007 MRI showed postoperative changes at L3-4 and L4-5. There was "perhaps" a minimal bulge or prolapse at L5-S1 without neural compression and "failed back surgery syndrome" was noted. Her report of medical examination from that month showed that she had limited range of motion and reported sciatic nerve flares. In service she had surgery for a lumbar schwannoma in 2006; the post-operative course had been complicated by a spinal fluid leak and required corrective surgery. She was not able to run, lift or wear body armor. In August 2007, lumbar spine range of motion was reported as follows: Forward flexion 92 Degrees Extension 14 Degrees Right lateral flexion 16 Degrees Left lateral flexion 18 Degrees Right lateral rotation 48 Degrees Left lateral rotation 43 Degrees In October 2007, the Veteran attended a VA spine examination. She reported stiffness and pain. The pain radiated to her legs and came on with activity or just sporadically. She had crushing, aching, squeezing, and sharp pain. She could function with pain, but had impaired movement and was unable to lift heavy objects. Climbing stairs, waking, taking out trash and pushing a lawnmower were painful due to her back. Her posture and gait were normal. She used a TENS unit. Range of motion was as follows wit limitation due to pain. Forward flexion 0-70 Degrees Extension 0-20 Degrees Right lateral flexion 0-30 Degrees Left lateral flexion 0-30 Degrees Right lateral rotation 0-30 Degrees Left lateral rotation 0-30 Degrees After repetitive use, pain was the major functional impact. No fatigue, weakness, lack of endurance, incoordination, or additional degree of limitation of motion was found. Inspection revealed a normal position of the head as well as symmetry in appearance and spinal motion. There was a normal curvature of the spine. No sensory deficits were found; a neurological examination was totally normal. The diagnosis was postoperative lumbar laminectomy with scar and lumbar degenerative disc disease, spondylosis and scoliosis. In February 2009, the Veteran attended a VA sleep work up appointment and reported her low back ached at night and interfered with sleep. In October 2008, a VA primary care record showed she reported using TENS unit and was trying to lose weight to help with her back pain. At the October 2009 VA examination, the Veteran reported aching pain in her low back. She did not have flare ups or radiation of pain to the legs. She did not report decreased range of motion or bowel/bladder incontinence. She walked unaided. Functionally, she avoided sitting more than 30 minutes and standing and walking longer than five minutes. She didn't lift over 20 pounds or run. She took breaks while gardening. Her gait was steady. Range of motion is below; with limitation due to pain. Forward flexion 0-55 Degrees Extension 0-10 Degrees Right lateral flexion 0-30 Degrees Left lateral flexion 0-30 Degrees Right lateral rotation 0-30 Degrees Left lateral rotation 0-30 Degrees There was no additional range of motion loss due to pain, fatigue, weakness, lack of endurance or incoordination following repetitive use. The lumbar area did not have tenderness, spasm, or weakness. There was some guarding with movement due to pain. A sensory and strength examination was normal. In March 2010, a VA history and physical examination showed that her back pain was stable. Analysis The Veteran is competent to report back symptoms such as pain. 38 C.F.R. § 3.159(a)(2). Further, she has been credible in her report of back pain. Caluza, 7 Vet. App. at 511. The range of motion testing of record fail to show limitation of forward flexion approximating 30 degrees as would be necessary for the next-higher 40 percent evaluation under the General Rating Formula. She has not been found to have additional limitation of motion due to functional impairment. See Mitchell, 25 Vet. App. at 33, 43; 38 C.F.R. §§ 4.40, 4.45, 4.59. Record shows that the spine is not fixed in position, rather that she retains substantial range of motion; hence there is no evidence of ankylosis. The October 2007 examination shows that the Veteran did have pain radiating into the lower extremities. This indicates neurologic impairment related to the back disability. Those symptoms had disappeared by the time of the October 2009 VA examination. These findings warrant a 10 percent rating for mild incomplete paralysis of the sciatic nerves of each lower extremity from the effective date of service connection until October 26, 2009, when the VA examination showed hear symptoms were not present. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Given that all other neurologic findings have been normal since the effective date of service connection, the evidence is against a finding of moderate incomplete paralysis between the date of service connection and October 26, 2007; or a finding of any neurologic impairment since October 26, 2007. The record does not otherwise support the assignment of different percentage evaluations, or staged ratings, during the time period on appeal. At no time since the effective date of service connection has the back disability warranted higher initial ratings. Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as 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) (2008). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The schedular criteria reasonably describe the Veteran's disability level and symptomatology; her complaints of back pain and limitation of motion are contemplated by the rating criteria. The assigned schedular evaluation is adequate. Thun, 22 Vet. App. at 115. Because the symptoms from the resulting disability are contemplated by the schedular criteria, there is no need for referral for extraschedular consideration in this case. As the Veteran is currently employed as an accountant and there is no evidence that this marginal employment, the issue of entitlement to total rating for compensation based on individual unemployability is not raised. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009); cf. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial increased rating in excess of 20 percent for the orthopedic manifestations of the back disability is denied. A 10 percent rating is granted for neurologic manifestations of the back disability involving the left lower extremity from December 10, 2007 to October 26, 2009. A 10 percent rating is granted for neurologic manifestations of the back disability involving the right lower extremity from December 10, 2007 to October 26, 2009. REMAND Meniere's syndrome is ratable, in part on the basis of hearing loss. 38 C.F.R. § 4.87, DC 6205. The Veteran has not been afforded a VA hearing examination since her discharge from service. Such an examination is required. Accordingly, this case is REMANDED for the following: 1. Afford the Veteran a VA examination to evaluate all manifestations of Meniere's disease. The examiner should review the claims folder. The examination should include audiologic testing and findings as to the frequency of attacks of vertigo and whether there is cerebellar gait dysfunction. 2. If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case and return the case to the Board, if otherwise in order. The appellant has 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. 2013). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs