Citation Nr: 1335456 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-26 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial disability evaluation in excess of 20 percent for the Veteran's lumbosacral spine degenerative disc disease, anterolisthesis, and sciatica. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran had active service from October 2002 to October 2007. This case came before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the San Diego, California, Regional Office which, in pertinent part, established service connection for posttraumatic stress disorder (PTSD); assigned a 30 percent evaluation for that disability; established service connection for lumbosacral spine degenerative disc disease, anterolisthesis, and sciatica; assigned a 20 percent evaluation for that disability; and effectuated the awards as of October 8, 2007. In January 2008, the Veteran informed the Department of Veterans Affairs (VA) that he had moved to Tennessee and requested that his claims file be transferred to the Nashville, Tennessee, Regional Office (RO). In July 2010, the Board granted an initial 50 percent evaluation for the Veteran's PTSD and remanded the issue of the initial evaluation for his lumbosacral spine disability to the RO for additional action. The action requested by the July 2010 Board remand was accomplished and the case subsequently returned to the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). The Board has reviewed both the physical claims file and the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence. In March 2011, the accredited representative submitted an informal claim of entitlement to service connection for hypertension. That issue has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it. The issue is referred to the RO for the appropriate action. FINDINGS OF FACT 1. The Veteran's lumbosacral spine degenerative disc disease, anterolisthesis, and sciatica have been shown to be manifested by no more than lumbosacral spine degenerative disc disease and anterolisthesis with "some encroachment on the exiting left nerve root;" chronic low back pain with radiation into the left hip area; a lumbosacral spine functional range of motion of forward flexion to approximately 45 degrees, extension to 30 degrees, lateral flexion to 30 degrees, bilaterally, and lateral rotation to 30 degrees, bilaterally, with pain; normal lower extremity muscle strength; normal lower extremity sensation; and no associated neurological, bowel, or bladder abnormalities. 2. The Veteran's lumbosacral spine degenerative disc disease has been productive of no incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for the Veteran's lumbosacral degenerative disc disease, anterolisthesis, and sciatica have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.10, 4.40, 4.45, 4.71a, 4.124a, Diagnostic Codes 5235, 5243, 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. 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. VA issued an August 2007 VCAA notice to the Veteran which informed him of the evidence generally needed to support a claim of service connection and the assignment of an evaluation and effective date for an initial award of service connection; what actions he needed to undertake; and how VA would assist him in developing his claim. The August 2007 VCAA notice was issued to the Veteran prior to the December 2007 rating decision from which the instant appeal arises. Therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Moreover, as this appeal arises the Veteran's disagreement with the initial evaluation following the grant of service connection for his lumbosacral spine disability, no additional notice is required regarding this downstream element of the service connection claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have similarly held that regarding the downstream element of the initial evaluation that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, 38 U.S.C.A. § 5103(a) notice is no longer required); 38 C.F.R. § 3.159(b)(3) (no VCAA notice required because of filing of NOD). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA. The Board remanded the Veteran's appeal to the RO so that he could be afforded a VA spinal examination. The requested VA evaluation was conducted. The examination report is of record. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The October 2010 VA examination report reflects that all relevant records were reviewed and opinion requested was advanced. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. II. Historical Review The report of a September 2007 pre-discharge examination for compensation purposes conducted for VA, the Veteran was diagnosed with lumbosacral spine degenerative disc disease with anterolisthesis, spondylosis, and bilateral scoliosis. Anterolisthesis is also called spondylolisthesis, which is "forward displacement of one vertebra over another, usually of the fifth lumbar over the body of the sacrum, or of the fourth lumbar over the fifth." Dorland's Illustrated Medical Dictionary, 1754 (32nd ed. 2012). In December 2007, VA established service connection for lumbosacral spine degenerative disc disease, anterolisthesis, and sciatica; assigned a 20 percent evaluation for that disability; and effectuated the award as of October 8, 2007. III. Evaluation The Veteran contends that the record supports assignment of an initial evaluation in excess of 20 percent for his lumbosacral spine disability. For the reasons that follow, the Board concludes that an increased initial evaluation is not warranted. Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Vertebral dislocation is to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Lumbosacral spine degenerative disc disease is to be evaluated under the Intervertebral disc syndrome (preoperatively or postoperatively) is to be 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 38 C.F.R. § 4.25 (2013). The General Rating Formula for Diseases and Injuries of the Spine directs that a 20 percent evaluation is warranted where there is either forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; the combined range of motion of the cervical spine not greater than 170 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 30 percent evaluation requires forward flexion of the cervical spine of 15 degrees or less or favorable ankylosis of the entire cervical spine. A 40 percent evaluation will be assigned for either unfavorable ankylosis of the entire cervical spine; forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation will be assigned for unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent evaluation requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation requires incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 60 percent evaluation requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. For purposes of application of the Formula for Rating Intervertebral Disc Syndrome, 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. Associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, are to be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Codes 5235, 5243. A 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve of either lower extremity. A 20 percent evaluation requires moderate incomplete paralysis. A 40 percent evaluation requires moderately severe incomplete paralysis. A 60 percent evaluation requires severe incomplete paralysis with marked muscular atrophy. A 80 percent evaluation requires complete paralysis with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which evaluations are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of evaluations in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as 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). A November 2007 VA magnetic resonance imaging (MRI) study of the lumbar spine indicates that the Veteran complained of chronic low back pain which radiated into the left posterior hip. An impression of "marked degenerative disc and end plate changes with some encroachment on the exiting left nerve root" was advanced. A November 2007 VA psychiatric evaluation conveys that the Veteran reported that he was in constant pain. A January 2008 VA evaluation states that the Veteran complained of chronic low back pain which occasionally radiated to the left hip. Contemporaneous MRI studies of the lumbosacral spine revealed bilateral foraminal stenosis which was more severe on the left side than the right. A January 2008 VA Pain Clinic evaluation relates that the Veteran complained of chronic low back pain which varied from 6 to 10 on a 10 point scale and was exacerbated by bending and walking and occasionally radiated to the left buttock area. He denied lower extremity numbness, tingling, or weakness and either bowel or bladder incontinence. A February 2008 VA physical therapy treatment record notes that the Veteran complained of chronic low back pain. He reported that he was a full time student. On examination of the lumbosacral spine, the Veteran exhibited a range of motion of "[forward flexion] decreased 50% + pain;" "extension [within functional limits] + relief;" "rotation [bilateral within functional limits];" "sidebending [bilateral within functional limits];" mild left lumbar paraspinal tenderness; and intact sensation to light touch. At the October 2010 VA spine examination, the Veteran complained of progressive low back pain which radiated to the left buttock. He reported that he was employed as an aircraft mechanic on a full-time basis and had lost eight weeks from work due to his lumbosacral spine disability. On examination of the lumbosacral spine, the Veteran exhibited forward flexion to 60 degrees, extension to 30 degrees, lateral flexion to 30 degrees, bilaterally, and lateral rotation to 30 degrees, bilaterally with pain; normal lower extremity muscle strength; and normal lower extremity sensation. The Veteran was diagnosed with lumbar spine degenerative disc disease. The examiner commented that the Veteran's lumbosacral spine disorder was productive of "difficulty with lifting and carrying more than 10 lbs." The Veteran asserts that an initial evaluation in excess of 20 percent is warranted for his service-connected lumbosacral spine disorders. The Veteran's lumbosacral spine disability has been shown to be manifested by no more than lumbosacral spine degenerative disc disease and anterolisthesis with "some encroachment on the exiting left nerve root;" chronic low back pain with radiation into the left hip area; a lumbosacral spine functional range of motion of forward flexion to approximately 45 degrees, extension to 30 degrees, lateral flexion to 30 degrees, bilaterally, and lateral rotation to 30 degrees, bilaterally, with pain; normal lower extremity muscle strength; and normal lower extremity sensation. While he has been found to exhibit radiation of his low back pain to the left hip area, the Veteran has not exhibited any left lower extremity neurological abnormalities on repeated examination. The Veteran's lumbosacral spine disability has not been shown to be productive of any incapacitating episodes requiring periods of physician-prescribed bedrest. The Veteran has not alleged that he has experienced such incapacitating episodes. Such findings merit assignment of a 20 percent evaluation under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5235, 5243. No neurological, bowel, and bladder abnormalities have been associated with the Veteran's service-connected disability. Therefore, separate evaluations including under 38 C.F.R. § 4.124a, Diagnostic Code 8520 are not for assignment. In the absence of functional limitation of lumbosacral spine forward flexion to 30 degrees or less; favorable ankylosis of the entire thoracolumbar spine; or any incapacitating episodes requiring physician-prescribed bed rest, the Board concludes that the criteria for an initial schedular evaluation in excess of 20 percent for the Veteran's lumbosacral spine disability is not warranted. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5235, 5243. Consistent with the facts found, an evaluation may be higher or lower for segments of the time under review on appeal; i.e., the evaluation may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the possibility of staged evaluations. The Board concludes that the criteria for an evaluation in excess of 20 percent for the Veteran's lumbosacral spine disability have not been met at any point during the relevant time period. A. Extra-Schedular Evaluation The Board has also evaluated whether the Veteran's claim should be referred for consideration of an extra-schedular evaluation for his lumbosacral spine degenerative disc disease, anterolisthesis, and sciatica under 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular evaluation. Initially, 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 is found inadequate, the Board must determine whether the veteran'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, to accord justice, the veteran's disability picture requires the assignment of an extra-schedular evaluation. Thun v. Peake, 22 Vet App 111 (2008). With respect to the first prong of Thun, the evidence in this instant appeal does not establish such an exceptional disability picture as to render the schedular evaluation is inadequate. A comparison between the level of severity and symptomatology of the Veteran's lumbosacral spine disability with the established criteria found in 38 C.F.R. § 4.71a, Diagnostic Codes 5235, 5243 reflects that the diagnostic criteria reasonably describes the Veteran's disability level and symptomatology. The diagnostic criteria convey that compensable evaluations will be assigned for lumbosacral spine vertebral dislocation and degenerative disc disease which is manifested by various levels of limitation of motion of the spinal segment. The Veteran's disability picture has been shown to encompass significant lumbosacral spine functional limitation of motion and symptoms which falls squarely within the diagnostic criteria for a 20 percent evaluation for all relevant time periods. For this reason, the Veteran's lumbosacral spine disability has not been shown to be productive of an exceptional disability picture. Therefore, the Board determines that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not merited. B. Total Disability Evaluation Based on Individual Unemployability Entitlement to a total disability evaluation based on individual unemployability (TDIU) is an alternative theory of all claims for a higher evaluation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU may be raised explicitly by a claimant or inferred from the record. An inferred claim for a TDIU is raised as part of an increased evaluation claim only when certain requirements are met. Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009). TDIU is raised by inference when: (1) submits evidence of a medical disability; (2) makes a claim for the highest evaluation possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The record reflects that the Veteran has been either a full time student or substantially gainfully employed as an aircraft on a full time basis during all relevant time periods. He has not alleged that his lumbosacral spine disability and/or other service-connected disorder render him unemployable. Thus, the Board concludes that the Roberson requirements are not met and that consideration of TDIU is not warranted. Accordingly, the Board finds that an initial evaluation in excess of 20 percent for the Veteran's lumbosacral degenerative disc disease, anterolisthesis, and sciatica is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER An initial evaluation in excess of 20 percent for the Veteran's lumbosacral spine degenerative disc disease, anterolisthesis, and sciatica is denied. ____________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs