Citation Nr: 1335686 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-34 614 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 60 percent for a lumbar spine disability. 2. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy. 3. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from May 2000 to January 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2006 and July 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a May 2013 decision, the Board granted service connection for left and right lower extremity radiculopathy and remanded the appeal to provide the Veteran a VA examination and to have the agency of original jurisdiction rate the service-connected radiculopathy. He was provided an examination in August 2013 and a June 2013 rating decision assigned a 20 percent rating for left lower extremity radiculopathy and a 10 percent rating for right lower extremity radiculopathy. FINDINGS OF FACT 1. The Veteran's lumbar spine disability has been manifested by limitation of forward flexion of the thoracolumbar spine to 30 degrees or less, but not by unfavorable ankylosis of the entire thoracolumbar spine. 2. The Veteran's left lower extremity radiculopathy has not been manifested by severe incomplete paralysis of the sciatic nerve. 3. The Veteran's right lower extremity radiculopathy has not been manifested by moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2013). 2. The criteria for a rating in excess of 20 percent rating for left lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2013). 3. The criteria for a rating in excess of 10 percent rating for right lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the duty to notify requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran was notified in a June 2006 letter of the criteria for establishing an increased rating, the evidence required, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines effective dates. That letter addressed all notice elements and predated the initial adjudication by the RO in October 2006. The Veteran's claims regarding radiculopathy arise from an appeal of the initial rating following the grant of service connection. Once service connection is granted, the claim is substantiated. Therefore, 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). Thus, no further notice is needed. Next, VA has a duty to assist the Veteran in the development of a claim. That duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). In this case, all necessary development has been accomplished and appellate review may proceed. Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service medical records, and post-service reports of VA and private treatment and examination. The Veteran's statements in support of the claims are of record. The Board has carefully reviewed those statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed 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 claims. VA provided the Veteran with examinations in August 2006, June 2007, June 2009, May 2012, and August 2013 to determine the nature and severity of his disabilities. The Board finds the examination reports to be thorough and adequate upon which to base a decision on the claims. The VA examiners interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information needed to evaluate the disabilities under the applicable rating criteria. The Board finds that no further notice or assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013). The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). A veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When the veteran is requesting an increased rating for an established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the most recent examination is not necessarily and always controlling. Consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. Powell v. West, 13 Vet. App. 31 (1999). Nevertheless, the Board acknowledges that 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 below is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran filed the current claim for an increased rating for his lumbar spine disability, to include radiculopathy of the lower extremities, in May 2006. The Veteran's lumbar spine disability is currently rated 60 percent under Diagnostic Code 5243 for intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a (2013). His disability was previously rated as 60 percent under former Diagnostic Code 5293, in effect prior to September 23, 2002. Under that code, a 60 percent rating was warranted when IVDS was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Since Diagnostic Code 5293 contemplated limitation of motion, a separate rating for limitation of motion could not be assigned. 38 C.F.R. § 4.14 (2013); VAOPGCPREC 36-97 (1997), 63 Fed. Reg. 31262 (1998). However, that rating included the neurological manifestations of left lower extremity radiculopathy. A June 2013 rating decision assigned a separate 20 percent rating for left lower extremity radiculopathy and a separate 10 percent rating for right lower extremity radiculopathy, effective May 17, 2006. The radiculopathy was rated under Diagnostic Code 8520. 38 C.F.R. § 4.124a (2013). However, the lumbar spine disability rating was not revised to include only the orthopedic manifestations of limitation of motion. Thus, the neurological manifestations have been rated under two codes, which is to be avoided. 38 C.F.R. § 4.14 (2013). Therefore, the Veteran's lumbar spine disability, including orthopedic manifestations and neurologic manifestations of radiculopathy, has been assigned a combined rating of 70 percent. 38 C.F.R. § 4.25 (2013). Under the current General Rating Formula for Diseases and Injuries of the Spine, 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 following ratings are assigned. A 20 percent is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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 gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a (2013). 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. 38 C.F.R. § 4.71a, Plate V (2013). When rating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). Under Diagnostic Code 8520 for rating disability of the sciatic nerve, complete paralysis, where the foot dangles and drops, with no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost, warrants an 80 percent rating. Severe incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. Moderately severe incomplete paralysis warrants a 40 percent rating. Moderate incomplete paralysis warrants a 20 percent rating. Mild incomplete paralysis warrants a 10 percent rating. 38 C.F.R. § 4.124, Diagnostic Code 8520 (2013). In this case, the only way the Veteran may receive a higher rating for his lumbar spine disability is to separately rate his orthopedic and neurological manifestations and combine them, or if unfavorable ankylosis of the entire spine is shown. The Board will first address the orthopedic manifestations. An August 2006 VA examination found flexion to 80 degrees with pain beginning at 60 degrees, extension to 30 degrees with pain beginning at 20 degrees, left and right lateral flexion to 30 degrees without pain, and left and right lateral rotation to 30 degrees without pain. A June 2009 VA examination found flexion to 40 degrees, extension to 10 degrees, left and right lateral flexion to 12 degrees, and left and right lateral rotation to 16 degrees. The examiner noted pain on range of motion. After repetitive motion, flexion was to 36 degrees, extension to 8 degrees, left and right lateral flexion to 10 degrees, and left and right lateral rotation to 15 degrees. A May 2012 VA examination found flexion to 30 degrees with pain beginning at 5 degrees, extension to 20 degrees with pain beginning at 5 degrees, left and right lateral flexion to 20 degrees with pain beginning at 5 degrees, left lateral rotation to 20 degrees with pain beginning at 5 degrees, and right lateral rotation to 20 degrees with pain beginning at 10 degrees. After repetitive motion, flexion was to 25 degrees, extension to 15 degrees, left and right lateral flexion to 10 degrees, and left and right lateral rotation to 10 degrees. The Veteran reported at that time that he had been having an exacerbation of back pain. An August 2013 VA examination found flexion to 50 degrees with pain beginning at 50 degrees, extension to 20 degrees with pain beginning at 20 degrees, left and right lateral flexion to 20 degrees with pain beginning at 20 degrees, and left and right lateral rotation to 20 degrees with pain beginning at 20 degrees. Range of motion remained the same after repetitive motion. Except for one entry dated in August 2008 that showed decreased range of motion of the back, VA treatment notes showed intact range of motion. Private treatment notes show full range of motion. Considering the evidence, the Veteran's lumbar spine disability has been manifested by limitation of flexion to at worst 30 degrees or less, which warrants a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. However, even considering additional functional loss due to pain, his disability has not more nearly approximated unfavorable ankylosis of the entire thoracolumbar spine to warrant a higher 50 percent rating. Throughout the appeal period, he has retained some range of motion of his thoracolumbar spine. Furthermore, even if his range of motion were so minimal as to approximate ankylosis, unfavorable ankylosis of the entire spine is needed for a higher rating, and that is not shown. Therefore, the orthopedic manifestations of his lumbar spine disability meet the criteria for no more than a 40 percent rating, which would be warranted for that degree of limitation of motion or favorable ankylosis of the entire thoracolumbar spine. The Board will now address the neurological manifestations of his lumbar spine disability. An August 2006 VA examination found 5/5 strength throughout the lower extremities and normal 2+ deep tendon reflexes but impaired sensation. An August 2006 private treatment note shows a diagnosis of radiculopathy. A June 2008 private EMG (electromyography) found evidence of left lower extremity radiculopathy and right sural demyelinating neuropathy. A June 2009 VA examination found 5/5 strength throughout the lower extremities, normal 2+ deep tendon reflexes, and normal sensation. A June 2009 VA EMG found no evidence of radiculopathy. A May 2012 VA examination found 5/5 strength throughout the lower extremities except for 4/5 strength in the left ankle and left great toe, normal 2+ deep tendon reflexes, and normal sensation except for decreased sensation in the left lower leg/ankle and left foot/toes. A January 2013 medical opinion notes a mild left lower extremity radiculopathy. An August 2013 VA examination found 5/5 strength throughout the lower extremities, normal 2+ deep tendon reflexes in the knees, decreased 1+ deep tendon reflexes in the ankles, and normal sensation except for decreased sensation in the left lower leg/ankle and left foot/toes. The examiner noted that there was moderate left lower extremity radiculopathy and no right lower extremity radiculopathy. VA treatment notes show no gross motor or sensory deficit. Considering the evidence, the Board finds that the Veteran's left lower extremity radiculopathy has been manifested by no more than moderate incomplete paralysis of the sciatic nerve, which warrants a 20 percent rating under Diagnostic Code 8520. It has been described as mild to moderate by physicians. Examinations have found 5/5 strength but for one finding of 4/5 strength in the ankle and great toe, normal deep tendon reflexes, but for one finding of 1+ in the ankle, and normal to decreased sensation in the lower leg, ankle, foot, and toes. Thus, with most examinations showing normal findings, the Board finds that the disability does not more nearly approximate moderately severe incomplete paralysis of the sciatic nerve to warrant a higher 40 percent rating. The Board finds that the Veteran's right lower extremity radiculopathy has been manifested by at worst mild incomplete paralysis of the sciatic nerve, which warrants a 10 percent rating under Diagnostic Code 8520. Examinations have been normal but for one finding of impaired sensation and one finding of a decreased deep tendon reflex in the ankle. Thus, with most examinations showing normal findings, the Board finds that the disability does not more nearly approximate moderate incomplete paralysis of the sciatic nerve to warrant a higher 20 percent rating. Therefore, the Board finds that the Veteran's lumbar spine disability meets the criteria for a 40 percent rating based on limitation of motion of the thoracolumbar spine and 20 percent and 10 percent ratings, respectively, for disability of the left and right sciatic nerve. Adding the ratings for these orthopedic and neurological manifestations results in a combined rating of 60 percent. 38 C.F.R. § 4.25 (2013). Therefore, the Veteran is not entitled to a higher overall rating for his lumbar spine disability, and not ratings higher than those currently assigned are warranted. The Board has also considered whether any other applicable rating criteria may enable higher rating. However, there are no other relevant diagnostic codes for consideration. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a maximum 60 percent rating. 38 C.F.R. § 4.71a (2013). In conclusion, the Board finds that higher ratings for the lumbar spine disability itself or the left and right lower extremity radiculopathy are not warranted. As the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additional Considerations The Board must also determine whether the schedular ratings are inadequate, thus requiring referral of the appeal to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disabilities. 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular rating is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the disability. Thun v. Peake, 22 Vet. App. 111 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111 (2008). When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular rating is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2013); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the schedular ratings are adequate. Ratings in excess of those assigned are provided for certain manifestations of the Veteran's service-connected disabilities, but the medical evidence shows that those manifestations are not present. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of his disabilities. Although he is using a back brace, the symptom requiring such use, pain on motion, is specifically contemplated by the rating criteria and the Veteran's rating specifically contemplates that rating. There is no objective or subjective evidence of any disability symptom or factor of disability which is not encompassed within the assigned ratings. As the rating schedule is adequate to rate the Veteran' disabilities, the Board finds that referral for extra-schedular consideration is not warranted. Even if the Board were to determine that the rating criteria were inadequate to address all of the effects of the Veteran's service-connected disabilities, his lumbar spine disability and associated radiculopathy of the lower extremities do not present exceptional or unusual circumstances. While the August 2006 VA examination report shows that he missed over 30 days of work during the past year due to low back pain, that level of impairment of earning capacity is contemplated in the rating criteria and the current 70 percent combined rating. Furthermore, he indicated that he had not been reprimanded for his absences. Similarly, while the June 2009 VA examination report indicated that his disabilities have significant effects on occupation, it was only noted that he would have problems lifting and carrying, which are reasonably contemplated in the schedular rating. While the May 2012 VA examination report shows that his employer is providing accommodations for his back pain, the provision of reasonable accommodations is not indicative of marked interference with employment. Lastly, the August 2013 VA examination report indicates that his disabilities do not impact his ability to work. Therefore, the Board finds that the Veteran's disabilities do not result in marked interference with employment. There is also no indication his disabilities have resulted in frequent hospitalizations. Thus, the Board finds that referral for extra-schedular consideration is not warranted. Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable, due to his service-connected disabilities. The May 2012 VA examination report shows that he was still working, with accommodations from his employer, and the evidence does not show that the employment was not substantially gainful. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER A rating in excess of 60 percent for a lumbar spine disability is denied. An initial rating in excess of 20 percent for left lower extremity radiculopathy is denied. An initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs