Citation Nr: 1332369 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 09-31 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for lumbar myofascial pain syndrome associated with multiple sclerosis. 2. Entitlement to an initial disability rating in excess of 30 percent for service-connected urinary retention associated with multiple sclerosis. 3. Entitlement to an initial disability rating in excess of 20 percent for left leg sciatica associated with multiple sclerosis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from September 2000 to May 2007. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing in February 2011. A transcript of the hearing has been associated with the claims file. The Board remanded these issues in September 2011 for further evidentiary development. The Appeals Management Center (AMC) continued the denial of the claims in the September 2012 supplemental statement of the case and returned these matters to the Board for further appellate consideration. The Veteran submitted additional VA treatment records with respect to the Veteran's service-connected urinary retention and left leg sciatica and an examination for housebound status or permanent need for regular aid and attendance in June 2012 at the St. Petersburg RO. This evidence was forwarded to the AMC in October 2012 and therefore, this evidence was not considered by the AMC in the September 2012 supplemental statement of the case. The Veteran's representative noted that the Veteran did not waive local jurisdiction of the new medical evidence that was provided. The evidence submitted in June 2012 is not pertinent to the Veteran's increased rating claim for lumbar myofascial pain syndrome associated with multiple sclerosis and therefore, the Board will proceed to decide this claim. See 38 C.F.R. §§ 19.31(b)(1), 20.1304 (2013). The Board observes that additional VA treatment records were associated with the claims file in September 2013. The Veteran submitted a request for expedited processing of the claims on appeal in September 2012 asserting that he waived his right to have the case remanded to the RO for any additional evidence that he submits after this date and he requested that the Board consider any new evidence during their adjudication of his appeal. Thus, the Veteran waived his right for initial consideration of the VA treatment records associated with the claims file in September 2013 by the Agency of Original Jurisdiction. See 38 C.F.R. § 20.1304 (2013). The issues of entitlement to an initial increased rating for urinary retention and left leg sciatica are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's service-connected lumbar myofascial pain syndrome is manifested by flexion limited to 70 degrees at the worst with consideration of any additional loss of motion due to pain or on repetitive use, muscle spasm and guarding that is severe enough to be responsible for abnormal gait or abnormal spinal contour and no evidence of ankylosis or intervertebral disc syndrome that results in incapacitating episodes that required physician prescribed bed rest. CONCLUSION OF LAW The criteria for an initial disability rating of 20 percent for lumbar myofascial pain syndrome associated with multiple sclerosis have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code 5021 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran is appealing the initial disability rating assigned for lumbar myofascial pain syndrome. The October 2007 rating decision granted the Veteran's claim of entitlement to service connection and therefore, such claim is now substantiated. His filing of a notice of disagreement as to the initial rating assigned in the October 2007 determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Rather, the Veteran's appeal as to the initial rating assignments trigger VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement. If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2013). As a consequence, VA is only required to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here. The July 2009 statement of the case, under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating disabilities of the spine, and included a description of the rating formulas for all possible schedular ratings under this diagnostic code. Therefore, the Veteran was informed of what was needed not only to achieve the next-higher schedular ratings, but also to obtain all schedular ratings above the initial evaluation that the RO assigned. Therefore, the Board finds that the Veteran has been informed of what was necessary to achieve a higher rating for the service-connected disability on appeal. With respect to VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, private treatment records, Social Security Disability records, a VA examination report dated in April 2009, a VA opinion dated in June 2007, September 2008 and September 2011 and lay statements from the Veteran and a Board hearing transcript dated in February 2011. The VA examination reports dated in June 2007, September 2008 and September 2011 reflect that the examiners reviewed the claims file, obtained an oral history of the Veteran's disabilities and evaluated the Veteran with respect to symptoms of lumbar myofascial pain syndrome. The examiners documented in detail the claimed symptoms and the effect of those symptoms on employment and daily life. Based on the foregoing, the examinations are adequate for rating purposes. These issues were previously remanded in September 2011 to obtain outstanding VA treatment records and schedule the Veteran with a VA examination to determine the current severity of his service-connected lumbar myofascial pain syndrome. The claims file contains the Veteran's outstanding VA treatment records from May 2009 to October 2011 and from February 2012 to June 2013. The record also contains a September 2011 VA examination that evaluates the current severity of the Veteran's lumbar myofascial pain syndrome as requested by the Board. Accordingly, the Board finds that there has been substantial compliance with the September 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the foregoing, the record presents no basis for further development to create any additional evidence to be considered in connection with the issue currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Criteria and Analysis 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. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2013). When the evidence is in relative equipoise, the Veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). 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, 509-10 (2007). In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The United States Court of Appeals for Veterans Claims has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's lumbar myofascial pain syndrome is currently evaluated as 10 percent disabling under Diagnostic Code 5099-5021. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2013). The additional code is shown after the hyphen. In this case, Diagnostic Code 5099 is used to identify disabilities of the musculoskeletal system that are not specifically listed in the schedule, but are rated by analogy to similar disabilities under the schedule. See 38 C.F.R. §§ 4.20, 4.27. The assignment of Diagnostic Code 5021 shows that the Veteran's service-connected lumbar myofascial pain syndrome is rated as analogous to myositis. Myositis is defined as inflammation of a voluntary muscle and is usually characterized by muscle weakness and joint manifestations to include polyarthralgia or polyarthritis. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1244 (31st ed. 2007) and The Merck Manual, Musculoskeletal and Connective Tissue Disorder, Autoimmune Rheumatic Disorders, Polymyositis and Dermatomyositis. Thus, symptoms of the Veteran's lumbar myofascial pain syndrome are similar to the symptoms of myositis. Accordingly, the Board concludes that the Veteran's lumbar myofascial pain syndrome is properly rated by analogy under Diagnostic Code 5021. Diagnostic Code 5021 provides that diseases rated under this diagnostic code will be rated on limitation of motion of affected parts, as degenerative arthritis. Degenerative arthritis is rated under Diagnostic Code 5003. Under this diagnostic code, arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint involved. If, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic code, Diagnostic Code 5003 provides that no more than a 10 percent disability rating is appropriate if there is objective evidence of limitation of motion and degenerative arthritis established by X-ray findings. 38 C.F.R. § 4.71a, Diagnostic Code 5003; see also 38 C.F.R. § 4.59 (2013) (stating that with any form of arthritis, painful, unstable, or malaligned joints are entitled to at least the minimum compensable rating for the joint). Limitation of the lumbar spine is evaluated under the General Rating Formula for Diseases and Injuries 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, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for 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 is 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. Forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Under 37 C.F.R. § 4.71a, Plate V, 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. Note (1), appending the diagnostic code, also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id., Note (1). Based on the evidence of record, the Board finds the Veteran's symptoms of lumbar myofascial pain syndrome more closely approximate a 20 percent disability rating. Although forward flexion of the thoracolumbar spine was not limited to 60 degrees or less at any time during the appeal period to include consideration of pain and repetitive use, the September 2008 VA examination reveals that the Veteran has objective evidence of muscle spasms and guarding that were severe enough to be responsible for abnormal gait or abnormal spinal contour. The September 2011 VA examiner determined that the Veteran's significant spasm and tenderness to the paraspinal muscles in the thoracolumbar region did not result in abnormal gait or spinal contour. The Board finds no reason to accord more weight to one opinion over the other in this case. Thus, resolving any reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's lumbar myofascial pain syndrome results in muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour. The Veteran's lumbar myofascial pain syndrome does not warrant a disability rating in excess of 20 percent as the manifestations do not more closely approximate limitation of forward flexion of the thoracolumbar spine to 30 degrees or less and there is no evidence that the Veteran has ankylosis of the entire thoracolumbar spine. Throughout the appeal period, flexion of the thoracolmbar spine was limited to 70 degrees and extension limited to 20 degrees at the worst even with consideration of pain and any additional loss of function on repetitive use. Furthermore, the VA examiners in June 2007 and September 2008 determined that the Veteran did not have ankylosis of the spine. Accordingly, the evidence of record does not more closely approximate favorable or unfavorable ankylosis of the thoracolumbar spine or flexion of the thoracolumbar spine of 30 degrees or less, even considering additional loss of motion based on repetitive use and pain. Other potential applicable diagnostic codes were considered. Under Diagnostic Code 5243, for intervertebral disc syndrome (IVDS), a 40 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this case, medical evidence of record shows that the Veteran has not had incapacitating episodes with physician prescribed bed rest as described in the regulations. See id. at Note (1). Based on the foregoing, there is no applicable diagnostic code that would result in a rating higher than 20 percent for the Veteran's disability for the reasons discussed in detail above. Furthermore, although the Veteran has objective evidence of neurological abnormalities, these issues are already evaluated under separate disability ratings and are the result of the Veteran's service-connected multiple sclerosis and not the Veteran's lumbar myofascial pain syndrome. The Board has considered whether staged ratings are appropriate with respect to the Veteran's service-connected lumbar myofascial pain syndrome. The medical evidence of record shows that the symptoms of the Veteran's thoracolumbar spine have not fluctuated materially during the course of this appeal. As such, a staged rating is not warranted. According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for service-connected lumbar myofascial pain syndrome is inadequate. A comparison between the level of severity and symptomatology of the Veteran's service-connected lumbar myofascial pain syndrome with the established criteria found in the rating schedule for disabilities of the spine shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The evidence of record does not show that the Veteran's lumbar myofascial pain syndrome has caused marked interference with employment that is not already contemplated in the assigned rating criteria. Furthermore, the medical record does not show that the Veteran's low back disability has necessitated frequent periods of hospitalization during the appeal period or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to an initial disability rating of 20 percent, but not greater, for lumbar myofascial pain syndrome associated with multiple sclerosis is granted. REMAND The Veteran submitted additional VA treatment records and an examination for housebound status or permanent need for regular aid and attendance to the RO in June 2012. The Appeals Management Center received this evidence in October 2012 after the issuance of the most recent supplemental statement of the case in September 2012. The Veteran's representative specifically noted that the Veteran did not waive local jurisdiction of this new evidence. A supplemental statement of the case considering this additional evidence has not been issued. Furthermore, a VA treatment record dated in May 2012 reveals that the Veteran reported continued clinical decline in left hemiparesis and neurogenic bladder. The U.S. Court of Appeals for Veterans Claims has held that "[w]here the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination." Olson v. Principi, 3 Vet. App. 480, 482 (1992), see also VAOPGCPREC 11-95 (1995). Thus, the Board finds that the Veteran should be provided with another VA examination regarding his service-connected connected urinary retention and left leg sciatica. Accordingly, the case is REMANDED for the following action: 1. Obtain up-to-date VA treatment records. All records obtained should be associated with the claims file. 2. After completion of the foregoing and associating any outstanding records with the claims file, schedule the Veteran for an appropriate VA examination(s) to determine the degree of impairment due to urinary retention and left leg sciatica. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. All indicated tests and studies should be accomplished. The examiner(s) should identify all relevant symptoms and findings and provide an opinion as to the degree of impairment due to urinary retention and left leg sciatica. As part of this examination of the Veteran's left leg sciatica, the examiner should specifically comment on any neurological impairment(s) of the left lower extremity associated with the Veteran's multiple sclerosis and describe any symptoms and functional limitations associated with such impairment(s). Any neurological impairment of the left lower extremity should be described in detail, with the affected nerves, or those seemingly affected, identified, and the impairment for each such nerve characterized as slight, moderate, moderately severe, severe, or complete paralysis. The examiner is also requested to address whether the Veteran's left leg sciatica has resulted in muscular atrophy, no active movement of the muscles below the knee or weakened flexion of the knee. An explanation should accompany all opinions provided. 3. Upon completion of the foregoing, readjudicate the Veteran's initial increased rating claims for urinary retention and left leg sciatica based on a review of the entire evidentiary record. If the benefits sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the issues should be returned to the Board for further consideration, if 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). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs