Citation Nr: 1333016 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 08-14 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 20 percent for chronic lumbosacral strain. 2. Entitlement to an increased (compensable) rating for hemorrhoids. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran served on active duty from October 1975 to February 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In October 2011, the Board remanded these matters for additional development. The issues of entitlement to an increased rating for hemorrhoids and entitlement to a TDIU are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The orthopedic manifestations of the Veteran's service-connected lumbosacral strain disability have been characterized as complaints of pain and tenderness, and some limitation of motion, to include forward flexion of the thoracolumbar spine limited, at most, to 60 degrees and extension, limited at most, to 20 degrees. The medical evidence does not show that he has ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome. 2. Resolving reasonable doubt in favor of the Veteran, the November 3, 2011, VA examination supports a finding that the Veteran's service-connected lumbosacral strain disability is manifested by left and right lower extremity radiculopathy that approximates no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2012). 2. Effective November 3, 2011, the criteria for a separate 10 percent disability rating for left lower extremity radiculopathy, as a manifestation of the Veteran's lumbosacral spine disability, have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). 3. Effective November 3, 2011, the criteria for a separate 10 percent disability rating for right lower extremity radiculopathy, as a manifestation of the Veteran's lumbosacral spine disability, have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a December 2006 letter. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate awareness of what is necessary to substantiate claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent February 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is to be considered when assigning disability rating. 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Chronic Lumbosacral Strain An October 1982 rating decision granted service connection and assigned a 0 percent disability rating for chronic lumbosacral strain, pursuant to the former criteria for rating spine disabilities, under Diagnostic Code 5295. Thereafter, in a February 2000 rating decision, the RO granted a higher 20 percent rating, pursuant to the criteria for the former Diagnostic Codes 5295-5292. 38 C.F.R. § 4.71a (as in effect prior to September 26, 2003). Since March 2007, the disability has been rated under Diagnostic Code 5237 under the revised spine criteria (as in effect since September 26, 2003). The Veteran filed his current claim for a higher rating in October 2006, after the amended criteria went into effect, thus, only the current rating formula is for consideration. Effective September 26, 2003, spine disabilities are rated under a General Rating Formula for Diseases and Injuries of the Spine, which provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a (2012). A note following the schedular criteria directs that associated objective neurologic abnormalities are to be rated separately. The combined range of motion refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal range of motion of the thoracolumbar spine encompasses flexion to 90 degrees and extension, bilateral lateral flexion, and bilateral rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V (2012). The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2012). The Board notes that criteria of the General Rating Formula are applied with and 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. In determining the degree of limitation of motion, the Board must consider lack of normal endurance, functional loss due to pain, pain on use and during flare-ups, weakened movement, excess fatigability, incoordination, and effects of the disability on the Veteran's ordinary activity. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). A December 2006 VA spine examination report shows that the Veteran reported his occupation as an auto mechanic and that he had to stop working because his back pain had progressively worsened and he was unable to bend, lift, and pull. Current treatment was naproxen and heat pads. The Veteran reported a history of decreased motion; stiffness; weakness; spasms; severe flare-ups on a weekly basis precipitated by excessive lifting, standing, and working hard; and that during flare-ups he was unable to bend and lift anything. The Veteran stated that he was unable to walk more than a few yards and could walk up to 15 minutes. Physical examination revealed spasm, guarding, pain with motion, tenderness, and weakness on the left and right sides. No atrophy was found. There was no muscle spasm, localized tenderness of guarding severe enough to be responsible for abnormal gait, or abnormal spinal contour. The Veteran's posture was normal, but he walked with a slight slump and limp. Muscle tone was normal and there was no muscle atrophy. Sensory examination was 2/2 for vibration, pain, light touch and position sense. Reflex examination was 2+. There was no ankylosis. The Veteran had flexion to 85 degrees with pain beginning at 35 degrees and ending at 30 degrees. The Veteran had pain on active, passive and repetitive use motion. Flexion on repetitive use was to 75 degrees due to pain. He had extension to 22 degrees with pain beginning at 8 degrees and ending at 4 degrees. A January 2007 CT scan revealed no disc herniation. It was noted that the Veteran was unable to work due to back pain for the past one to two years. The diagnosis was minimal posterior central bulging annulus at L5-S1. Minimal degenerative facet joints. Minimal spondylosis with small anterior marginal spurs. Mild right sacroiliitis. The examiner opined that the Veteran's back pain had significant effects on his usual occupation. In his May 2008 substantive appeal, the Veteran stated that he could no longer do the job he was trained to do and that his back had become progressive worse. A September 2011 VA spine examination report shows that the Veteran complained of chronic low back pain that had become more severe and started radiating down the left leg to the foot in 2007. The pain radiated down both legs to the feet and was accompanied by a burning sensation, numbness, and tingling. On range of motion testing, the Veteran had flexion to 60 degrees, extension to 30 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 20 degrees, all ranges were without objective evidence of painful motion. On repetitive-use testing, only the Veteran's extension changed, with a finding of extension to 20 degrees. The examiner found that the Veteran had functional loss, impairment and/or additional limitation of range of motion due to contributing factors of less movement than normal, pain on movement, instability of station, and interference with sitting, standing, and weight bearing. The Veteran had localized tenderness or pain to palpation for joints of the soft tissue of the thoracolumbar spine. He did not have guarding or muscle spasm. Muscle strength testing was 5/5 and the Veteran did not have muscle atrophy. Sensory examination was normal. Straight leg raising test was positive for both the right and the left. The examiner indicated that the Veteran had radicular pain or other signs and symptoms due to radiculopathy. The Veteran was found to have constant pain, intermittent pain, paresthesias or dysesthesias, and numbness in the right and the left lower extremities, all described as moderate. There were no other signs or symptoms of radiculopathy. Involvement of the right and the left sciatic nerve was found. The severity of the radiculopathy for each side was moderate. The Veteran did not have intervertebral disc syndrome. The Veteran occasionally used a cane. Arthritis was documented on imaging studies. An MRI of the lumbar spine revealed an impression of moderate chronic desiccation at L1-2 throughout the annulus causing moderate spinal stenosis image are a bilateral foraminal encroachment; and minor desiccation at L2-3 without complication. EMG/NCV studies were performed and there was no electrodiagnostic evidence of lumbar radiculopathy. The VA examiner stated that the Veteran's orthopedic examination was within normal limits. The examiner opined that the lower extremity neuropathy was due to heavy alcohol consumption over the past 35 years, rather than a worsening of his low back condition. His current low back condition was moderate and therefore might prevent physical labor, but not sedentary employment. After considering the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the orthopedic manifestations of the Veteran's service-connected lumbosacral strain disability. According to the General Rating Formula for Diseases and Injuries of the Spine to warrant a rating in excess of 20 percent, forward flexion of the thoracolumbar spine must be limited to 30 degrees or less, or there must be favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a (2012). Neither limitation of motion has been demonstrated. Based on the objective findings in the medical evidence of record, the Veteran's flexion of his lumbar spine was limited to 60 degrees at the time of the November 2011 VA examination. At the time of the December 2006 VA examination, the Veteran's flexion of the lumbar spine was to 85 degrees, and to 75 degrees after repetitive motion. In addition, the November 2011 VA examiner specifically found that the Veteran did not have ankylosis of the entire thoracolumbar spine. Based on that symptomatology, a rating in excess of 20 percent rating under the criteria in effect since September 26, 2003 is not warranted for the orthopedic manifestations of the Veteran's lumbosacral strain disability. In considering this claim, the Board has also specifically considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). However, increased ratings for the orthopedic manifestation of the Veteran's lumbar spine disability are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are contemplated by the rating already assigned. Specifically, even when considering the impact of pain and flare-up conditions and the effect of prolonged sitting or standing, the Veteran's range of motion still exceeded what was required in order to warrant a rating in excess of the current 20 percent. Thus, when the ranges of motion in the back are considered together with the evidence showing functional loss, to include the findings pertaining to normal muscle strength and the lack of evidence of muscle atrophy, the Board finds that there is insufficient evidence of objective pain on motion to such extent, or any other functional loss, to warrant a rating in excess of 20 percent. Therefore, a rating higher than 20 percent rating is not warranted based on the evidence of record. The Board has also considered whether a separate ratings is warranted for neurological symptoms associated with the Veteran's lumbar spine disability. Any associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. Following a review of the claims file, the Board finds that a separate rating for radiculopathy is warranted under Diagnostic Code 8520. The November 3, 2011, VA examination report shows evidence of radiculopathy in the left and the right lower extremities, despite electrodiagnostic evidence to the contrary. In addition, at the time of the November 2011 VA examination, the Veteran complained of pain radiating to both legs, accompanied by a burning sensation, numbness, and tingling. Under Diagnostic Code 8520, a 10 percent rating is warranted when there is mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted when there is moderate incomplete paralysis. A 40 percent rating is warranted when there is moderately severe incomplete paralysis. A 60 percent is warranted when there is severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted when there is complete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The terms mild, moderate, and severe are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). The use of terminology such as mild or moderate by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). Based on the aforementioned evidence, the Board finds that by resolving all reasonable doubt in favor of the Veteran, the Board has determined that separate 10 percent ratings are warranted for the right and the left lower extremity radiculopathy, effective November 3, 2011. The Veteran's neurological findings were first documented on the November 3, 2011, VA examination and although the examiner described the findings as moderate, the Board notes that EMG testing was negative for radiculopathy and thus the Veteran's radiculopathy does not rise to the level of moderate impairment. Furthermore, there was no motor loss or evidence of muscle atrophy. Therefore, in weighing the collective evidence as to severity, the Board finds that the Veteran has, at most, a mild degree of radiculopathy in the right and the left lower extremities. Where involvement is wholly sensory, the rating should be for the mild, or at most moderate, incomplete paralysis. 38 C.F.R. § 4.124a (2012). The Board finds that moderate incomplete paralysis is not shown. The Board has also considered whether the Veteran's claim for an increased rating should be referred for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1) (2012) and has concluded that no referral is not warranted. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render his disabilities rating for a lumbosacral spine disability inadequate. The Veteran's lumbosacral spine disability was rated under 38 C.F.R. § 4.71a , Diagnostic Code 5237 (2012), the criteria of which are found by the Board to specifically contemplate the Veteran's level of disability and symptomatology. Throughout the entire period on appeal, the Veteran's lumbosacral spine disability was manifested by pain, bilateral radiculopathy, and limitation of motion that was analogous, at most, to flexion greater than 30 degrees but not greater than 60 degrees. When comparing that disability picture with the symptoms contemplated by the Schedule, the Board finds that the Veteran's symptoms are adequately contemplated by the disabilities rating assigned for his lumbosacral spine disability. Ratings in excess of the ratings assigned are provided for certain manifestations of spine disabilities, but the medical evidence shows that those manifestations are not present. Although the Veteran states that he has not been able to work in his profession as an automotive mechanic for the past two years due to his back pain, the November 2011 VA examiner opined that the Veteran's lumbar spine disability may prevent physical labor, but not sedentary employment. Thus, the Board notes that the disability has not objectively been shown to markedly interfere with employment beyond that contemplated in the assigned rating. The Board finds that the rating criteria reasonably describe the Veteran 's disability level and symptomatology and provide ratings for additional or more severe symptoms than currently shown by the evidence. Therefore, his disability picture is contemplated by the rating schedule, and the assigned schedular rating is not inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER A rating in excess of 20 percent for service-connected chronic lumbosacral strain is denied. A separate 10 percent rating for left lower extremity radiculopathy, associated with the service-connected lumbosacral strain disability is granted, effective November 3, 2011. A separate 10 percent rating for right lower extremity radiculopathy, associated with the service-connected lumbosacral strain disability is granted, effective November 3, 2011. REMAND With regard to the claim for an increased rating for hemorrhoids, the Board notes that according to a December 6, 2011, VA anesthesiology record, the Veteran was scheduled for a colonoscopy at VA on December 16, 2011, due to severe anemia. Findings from that colonoscopy and VA medical records thereafter could be pertinent to this claim on appeal. Therefore, a remand is warranted to obtain all VA medical records dated from December 6, 2011 to the present. In addition, while the most recent November 2011 VA hemorrhoids examination is not overly stale, in light of the above development, the Board finds it prudent to obtain a new VA examination to fully and fairly assess the merits of the claim. During the Veteran's November 2011 VA spine examination, he indicated that he was no longer able to work due to his service-connected lumbar spine disability. A TDIU claim is part of an increased rating claim when a TDIU claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the issue of entitlement to a TDIU rating has been raised by the record and is within the jurisdiction of the Board. The Board notes that if, in the course of adjudicating the issue, the RO determines that the Veteran does not meet the rating criteria for TDIU under 38 C.F.R. § 4.16(a) (2012), but his service-connected disabilities prevent him from securing and following a substantially gainful occupation, the provisions of 38 C.F.R. § 4.16(b) should be followed. Those provisions state that a claim for TDIU may be referred to the Compensation and Pension Service when a Veteran does not meet the percentage standards of 38 C.F.R. § 4.16(a), but is otherwise unemployable due to service-connected disabilities. 38 C.F.R. § 4.16(b) (2012). Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization, so that any additional evidence pertinent to the claims remaining on appeal that is not currently of record can be obtained. With regard to the claim for a TDIU, the letter should explain what evidence is the Veteran's responsibility to submit, what evidence VA will seek to obtain, and to specifically include notice of the requirements for establishing a TDIU under 38 C.F.R. § 4.16(b) (2012). 2. Obtain all outstanding VA medical records from December 6, 2011, to the present. 3. Schedule the Veteran for a VA examination with an appropriate specialist to determine the current nature and severity of his hemorrhoids. The examiner should review the claims folder and should note that review in the report. The rationale for all opinions should be explained. The examiner must specifically state whether any external or internal hemorrhoids found are best characterized as one of the following: (1) mild or moderate; (2) large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences; or (3) with persistent bleeding and with secondary anemia, or with fissures. The examiner is requested to reconcile the findings in the November 2011 VA examination report and the VA medical records showing that the Veteran is diagnosed with anemia. The examiner is also asked to discuss how the Veteran's hemorrhoid disability impacts his activities of daily living, including his ability to obtain and maintain employment. 4. Then, schedule the Veteran for a VA examination to ascertain the cumulative impact of his service-connected disabilities. The examiner must review the claim file and must note that review in the examination report. The rationale for all opinions should be explained. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected disabilities (chronic lumbosacral strain, hemorrhoids, right lower extremity radiculopathy, and left lower extremity radiculopathy), without consideration of his non-service-connected disabilities, render him unable to secure or follow a substantially gainful occupation. If the Veteran's service-connected disabilities do not render him unemployable, the examiner should suggest the type of employment the Veteran would be capable of performing with his current service-connected disabilities, considering his current skills and educational background. The examiner should state what accommodations would be necessary due to the service-connected disabilities. 5. Then, readjudicate the claim for an increased rating for hemorrhoids and entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(a) and 38 C.F.R. § 4.16(b). If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs