Citation Nr: 1336049 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 11-19 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for residuals of a lumbosacral strain prior to February 18, 2012, and an initial rating in excess of 20 percent thereafter. 2. Entitlement to service connection for a neurologic disability of the left leg, to include as due to undiagnosed illness or as secondary to a service-connected lumbosacral disability. ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2004 to December 2008, including service in the Southwest Asia theater of operations. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. On his July 2011 substantive appeal, the Veteran requested a videoconference hearing before a Veterans Law Judge (VLJ). A hearing was scheduled for October 2012 and was rescheduled to November 2012, but the Veteran failed to appear. As the Board has received no request for a postponement or good cause for his failure to report, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2013). The issue of entitlement to service connection for a neurologic disability of the left lower extremity, to include as due to undiagnosed illness and as secondary to a service-connected lumbosacral disability, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to February 18, 2012, even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, the Veteran's lumbosacral disability has been productive of forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. 2. For the period from February 18, 2012, even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, the Veteran's lumbosacral disability has been productive of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 3. At no time during the appeal has the Veteran's lumbosacral disability been productive of forward flexion of the thoracolumbar spine limited to 30 degrees or less, abnormal gait, ankylosis, scoliosis, reversed lordosis, abnormal kyphosis or incapacitating episodes. 4. Throughout the appeal, the Veteran's lumbosacral disability has been productive of neurologic impairment of the left lower extremity that results in disability analogous to moderate incomplete paralysis of the sciatic nerve; however, the preponderance of the evidence is against a finding that the Veteran's low back disability is productive of disability analogous to moderately severe incomplete paralysis of the sciatic nerve. 5. Throughout the appeal, the Veteran's lumbosacral disability has been productive of neurologic impairment of the right lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve; however, the preponderance of the evidence is against a finding that the Veteran's low back disability is productive of disability analogous to moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Prior to February 18, 2012, the criteria for an initial rating in excess of 10 percent for residuals of a lumbosacral strain were not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Codes 5235-5243 (2013). 2. Since February 18, 2012, the criteria for an initial rating in excess of 20 percent for residuals of a lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Codes 5235-5243 (2013). 3. Effective December 18, 2008, the criteria for a separate 20 percent evaluation for left-sided mild incomplete paralysis of the sciatic nerve have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2013). 4. Effective December 18, 2008, the criteria for a separate 10 percent evaluation for right-sided mild incomplete paralysis of the sciatic nerve have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veteran's claim for a higher rating arises from his disagreement with the initial evaluations assigned following the grant of service connection. Courts have held that in these circumstances, once notice has been satisfied in conjunction with the grant of service connection, additional notice is not required under 38 U.S.C.A. § 5103. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As VA's duty to notify with regard to the Veteran's lower back disorder service connection claim has been satisfied, the appeal may be adjudicated without remand for further notification. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue on appeal has been obtained, including the Veteran's VA treatment records. The Veteran has been afforded multiple VA examinations in April 2009 and February 2012 and has not indicated that his condition has worsened since his most recent examinations. Significantly, the Board observes that the Veteran does not report that the condition has worsened since that time, and thus a remand is not required solely due to the passage of time since the most recent VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The Board finds that these examinations are adequate to decide the issue as they are predicated on a review of the complete record. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Moreover, the Veteran has not identified any relevant, available treatment records that remain outstanding. II. Law As noted above, the Veteran is in receipt of a 10 percent disability rating for his service-connected lumbosacral disability prior to February 18, 2012, and a 20 percent disability rating thereafter. He contends that the severity of his lumbosacral disability is greater than his currently-assigned disability ratings contemplate. The Veteran's lower back disability, diagnosed as lumbosacral strain (Diagnostic Code 5237) for rating purposes, is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. Pursuant to this formula, a 10 percent rating is warranted if the disability is manifested by limitation of motion 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 the orthopedic manifestations of a lower back disability when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less; or when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. When evaluating joint disabilities rated on the basis of limitation of motion, VA must 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. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and degree of his recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.") III. Analysis The Veteran's service treatment records indicate chronic low back pain diagnosed as a bulging disk at L5-S1 with a possible sacral lumina fracture and recurrent radicular symptoms including ongoing complaints of pain and numbness radiating down the left leg. At an April 2009 VA examination the Veteran complained of continuous back pain since separation from service, with 10-15 minute flare-ups occurring approximately three times per week. He also reported intermittent numbness in the left leg. The VA examiner found objective evidence of a lower back injury with the Veteran capable of thoracolumbar forward flexion to 85 degrees with no objective pain on motion and no additional limitation of motion upon repetition. The examination also noted normal motor and sensory findings in the lower extremities but that reflexes were absent to trace at the knees and ankles. A February 2012 VA peripheral nerves examination reflects that the Veteran was diagnosed as having lumbar radiculopathy. The examiner noted moderate constant and intermittent pain and severe parasthesias and numbness in the left lower extremity. A February 2012 VA back (thoracolumbar spine) examination diagnosed the Veteran with lumbosacral strain, noting daily flare-ups from 10-15 minutes and forward thoracolumbar flexion to 60 degrees with evidence of painful motion at 30 degrees. The VA examiner also noted radiculopathy involving the sciatic nerve roots, manifesting as mild numbness in the right lower extremity. After reviewing the evidence of record the Board finds that the preponderance of the evidence shows that, even considering the Veteran's pain and corresponding functional impairment, including during flare-ups, the orthopedic component of the Veteran's low back disability has been appropriately rated at 10 percent prior to February 18, 2012, and 20 percent thereafter. Prior to February 18, 2012, the Veteran was capable of forward flexion to 85 degrees with no objective pain on motion and no additional limitation of motion after repetition. The Veteran's combined range of motion of the thoracolumbar spine was 190 degrees and he displayed no evidence of abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. On February 18, 2012, the Veteran's forward thoracolumbar flexion was limited to 60 degrees with evidence of painful motion at 30 degrees with no additional limitation to range of motion upon repetition. There is no ankylosis noted in the record. The Veteran has reported regular flare-ups that can result in severe pain, but last only 10-15 minutes. The Veteran has not indicated that these flare-ups further impair his functionality or ability to work and they are thus adequately contemplated under the rating criteria. When rating under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2013). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran has repeatedly denied experiencing any bladder or bowel impairments related to his lumbosacral disability, but he has reported and been diagnosed with radiculopathy of his bilateral lower extremities including symptoms of numbness, pain and absent reflexes. The identified neurologic problems associated with the Veteran's lower extremities are most appropriately rated under Diagnostic Code 8520, which states that 10, 20, 40, or 60 percent disability ratings are assigned for mild, moderate, moderately severe, or severe incomplete paralysis of the sciatic nerve, respectively, and an 80 percent rating is assigned for complete paralysis of the sciatic nerve. When discussing incomplete paralysis, the schedule of ratings instructs that when the involvement is wholly sensory, the rating should be for the mild or at most, the moderate degree. 38 C.F.R. § 4.124a Diseases of the Peripheral Nerves. The medical evidence of record indicates moderate constant and intermittent pain and severe parasthesias and numbness in the left lower extremity. This evidence is corroborated by the Veterans competent lay reports. Given the lack of muscle atrophy and the February 2012 VA peripheral nerves examiner's finding that the Veteran's neurologic condition does not functionally impact his ability to work, the Board finds that a 20 percent rating, and no more, for moderate incomplete paralysis is warranted. Accordingly, a 20 percent evaluation is granted for lumbar radiculopathy of the Veteran's left lower extremity. The medical evidence of record also shows mild radiculopathy in the right lower extremity manifesting as mild numbness. The Board notes that the Veteran has not complained of neurologic problems associated with his right leg prior to his February 18, 2012 exam but that the reflexes of his feet and ankles were noted to be absent as of April 2009. Given the mild nature of the symptoms, the Board finds that a 10 percent rating, and no more, for mild incomplete paralysis is warranted. Accordingly, a 10 percent evaluation is granted for lumbar radiculopathy of the Veteran's right lower extremity. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the orthopedic and neurological manifestations of the Veteran's lower back disability, as his disability is productive of pain, limitation of motion, and loss of sensation in his lower extremities, manifestations that are contemplated in the relevant rating criteria. Thus, the Board finds that the schedular rating criteria are adequate to evaluate his lumbar spine disability and referral for consideration of extraschedular rating is not warranted. The evidence of record indicates that the Veteran is currently employed as a bartender and has not asserted that his disability makes him unemployable. Therefore, the Board need not discuss the Veteran's entitlement to a TDIU, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER An initial rating in excess of 10 percent for residuals of a lumbosacral strain prior to February 18, 2012, is denied. An initial rating in excess of 20 percent for residuals of a lumbosacral strain following February 18, 2012, is denied. Subject to the law and regulations governing payment of monetary benefits, effective December 18, 2008, a separate 20 percent rating for moderate incomplete paralysis of the sciatic nerve of the left lower extremity, is granted. Subject to the law and regulations governing payment of monetary benefits, effective December 18, 2008, a separate 10 percent rating for mild incomplete paralysis of the sciatic nerve of the right lower extremity, is granted. REMAND As it is unclear whether the Veteran has neurologic symptoms in the left leg other than lumbar radiculopathy, the Board has expanded the Veteran's claim to account for neurologic symptoms that may not be related to his lumbosacral disability. An examination is required in order to ascertain the presence of neurologic symptoms associated with the left leg other than lumbar radiculopathy, to include as due to an undiagnosed illness and as secondary to his service-connected low back disability. The Board notes that the Veteran was stationed in the Persian Gulf during a portion of his service and thus service connection may also be established under 38 U.S.C.A. § 1117 (West 2002) and 38 C.F.R. § 3.317 (2013). As such the case must be remanded and proper notice must be afforded the Veteran concerning the elements required to substantiate a claim for secondary service connection and for service connection under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. The Board also notes the Veteran's last treatment records available for review are dated February 3, 2011. Upon remand any more recent treatment records should be obtained and made available to the examining medical professional. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice regarding his claim for primary and secondary service connection, including the provisions of 38 U.S.C.A. § 1117; 38 C.F.R. §§ 3.310, 3.317. The Veteran and his representative should be given an opportunity to respond. 2. Associate, physically or electronically, VA treatment records pertaining to the Veteran dated since February 3, 2011. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back and leg symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an examination by an appropriate VA medical professional to determine the extent, onset and etiology of any neurologic abnormalities associated with the Veteran's lower left extremity, other than lumbar radiculopathy. Any indicated diagnostic tests and studies should be conducted. The examiner must provide an opinion, in light of the examination findings and after review of the service and post-service evidence of record, as to the following with regard to the left leg: a. Whether it is at least as likely as not that the Veteran has neurologic symptoms associated with his left lower extremity other than lumbar radiculopathy. b. If any neurologic symptoms other than lumbar radiculopathy are detected, whether it is at least as likely as not that they are attributable to a known diagnosis. c. If there are neurologic symptoms attributable to a known diagnosis other than lumbar radiculopathy, whether it is at least as likely as not that they are related to or had their onset in service. d. If there are neurologic symptoms attributable to a known diagnosis other than lumbar radiculopathy, whether it is at least as likely as not that they are caused by the Veteran's service-connected lumbosacral disability. e. If there are neurologic symptoms attributable to a known diagnosis other than lumbar radiculopathy, whether it is at least as likely as not that they have been aggravated by the Veteran's service-connected lumbosacral disability. The examiner should provide an explanation for all elements of his/her opinion. 5. Then readjudicate the issue on appeal. If any of the benefits sought on appeal remain denied, furnish the Veteran with a Supplemental Statement of the Case and afford him the opportunity to respond before the file is returned to the Board for further consideration. The Veteran 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. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs