Citation Nr: 1338076 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-36 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial rating higher than 20 percent for residuals of lumbar surgery to include intervertebral disc syndrome. 2. Entitlement to a separate rating for right lower extremity radiculopathy. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from June 2002 to July 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2006 of a Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In that decision, the RO granted entitlement to service connection for residuals of lumbar surgery, and assigned a 10 percent rating, effective the day after separation from service, July 12, 2006. The Veteran timely appealed the assigned rating. In September 2007, the RO increased the rating to 20 percent, also effective 12, 2006. In September 2009, the RO granted a separate rating for left lower extremity radiculopathy, and assigned a noncompensable rating effective May 4, 2009, and a 10 percent rating from June 8, 2009. The Veteran did not disagree with the initial staged rating and the rating of left lower radiculopathy has not been developed for appellate review by the Board. In September 2011, the Board remanded the claim for additional development. The development has been accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The residuals of lumbar surgery are forward flexion greater than 30 degrees without evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 2. There is mild radiculopathy of the right lower extremity CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for residuals of lumbar surgery have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5241 (2013). 2. The criteria for a separate rating of 10 percent for right lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 4.124a, Diagnostic Code 8520 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice regarding the underlying claim of service connection. Where, as here, service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating. Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA records. . The Veteran was afforded three VA examinations. As the reports of the VA examinations are based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Rating Principles Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of the two disability evaluations shall be applied, the higher is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Factors for Rating a Disability of the Musculoskeletal System Rating factors for a disability of the musculoskeletal system included functional loss. A disability of the musculoskeletal system is primarily the inability due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion, weakness, or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Vertebrae are considered groups of joints. As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include excess fatigability, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Rating a Disability of the Lumbar Spine e The disability of the lumbar spine is rated under Diagnostic Code 5243. A disability is rated 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. Under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for 40 percent are forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension. Under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. In rating peripheral nerves in the lower extremities, the rating schedule provides a 10 percent rating for mild incomplete paralysis and a 20 percent rating for moderate incomplete paralysis, depending on the particular nerve or nerve group of the lower extremity that is affected. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months is rated 40 percent. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Note 1, following the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Evidence On VA examination in June 2006, the Veteran complained of stiffness, weakness, and constant pain in his lower back. The Veteran stated that his condition did not cause incapacitating episodes. On physical examination, the Veteran exhibited normal posture, gait, and ambulation. He had no asymmetry or abnormal spine curvatures. The examiner did not elicit any muscle spasms or radiating pain on movement, however, the Veteran did exhibit signs of lumbar tenderness and painful motion. The Veteran had forward flexion from 0 to 90 degrees, extension from 0 to 30 degrees, left and right lateral flexion from 0 to 30 degrees, and left and right rotation from 0 to 30 degrees. Repetitive range of motion testing resulted in additional limitations of 30 degrees flexion due to pain, fatigue, weakness, and lack of endurance. The neurological examination revealed normal lower extremity motor and sensory function. VA records from January 2008 show that the Veteran was treated for back pain. The Veteran also had regular chiropractic treatment from October 2008 to July 2010. On VA examination in May 2009, the Veteran complained of low back pain. He stated that the back disability made it difficult to lift. He also complained of an incapacitating episode in November 2007 that lasted six days with recommended bed rest. He denied loss of bladder or bowel control. On physical examination, the Veteran had normal posture, gait, and ambulation. He had no asymmetry or abnormal spine curvatures. The examiner did not elicit any muscle spasms or radiating pain on movement. The Veteran had forward flexion from 0 to 50 degrees, extension from 0 to 15 degrees, left and right lateral flexion from 0 to 15 degrees, and left and right rotation from 0 to 15 degrees. Objective evidence of pain was noted at the end of each initial range of motion test. Repetitive range of motion testing resulted in additional limitations due to pain; however, the examiner did not specify the additional limitation in degree. The Veteran experienced sensory deficit of the left medial leg and signs of lumbar intervertebral disc syndrome were noted. Additionally, X-rays revealed joint narrowing and a mild curvature of the lumbar spine. On VA examination in February 2012, the Veteran complained of loss of range of motion with flare-ups. On physical examination, the Veteran required the constant use of a cane. Forward flexion was from 0 to 50 degrees, extension was to 0 degrees, left and right lateral flexion were to 15 degrees, and left and right rotation were to f 10 degrees. There was objective evidence of painful motion. Repetitive range of motion testing resulted in less movement than normal, weakened movement, fatigability, incoordination, pain on movement, instability, disturbance of locomotion, and interference with weight-bearing. Following three repetitions, the Veteran had forward flexion of 45 degrees, extension of -5 degrees, left and right lateral flexion of 15 degrees and left and right lateral rotation of 10 degrees. The examiner noted guarding or muscle spasms severe enough to result in abnormal gait or spinal contour. The examiner also noted hypoactive deep tendon reflexes in both lower extremities. The straight leg raising test was positive for the left lower extremity and both lower extremities experienced moderate intermittent pain and mild numbness. The diagnosis was mild right extremity radiculopathy, affecting the sciatic nerve. There were no episodes of incapacitating episodes noted over the past twelve months due to intervertebral disc syndrome. X-rays revealed evidence of arthritis. The examiner concluded that the Veteran would be unable to perform manual labor. Analysis Although the Veteran experienced additional functional loss due to pain, fatigue, weakness and instability during his VA examinations, the most restrictive finding of a functional range of forward flexion was to 45 degrees that does not approximate or equate to flexion of 30 degrees, which is the criteria for the next higher rating based on limitation of motion. Considering the additional weakness, fatigue and incoordination due to flare-ups, the functional range of motion does not approximate flexion of 30 degrees or less. And there is no objective evidence of favorable ankylosis of the entire thoracolumbar spine. As for incapacitating episodes, the evidence does not show that the Veteran had been prescribed at least four weeks of bed rest during a twelve month period. At VA examinations in June 2006 and February 2012, the Veteran did not report any incapacitating episodes in the previous year. In May 2009, the Veteran reported experiencing an incapacitating episode in November 2007 that required prescribed bed rest, however, the reported episode only lasted six days. The evidence of record does not indicate, and the Veteran does not allege, that he has been prescribed at least four weeks of bed rest during a twelve month period. As such, the medical evidence of record does not warrant an increased rating of 40 percent. The Veteran's overall disability picture does not more nearly approximate or equate to the criteria for the next higher rating of 40 percent, and the lower rating must be assigned. 38 C.F.R. § 4.7. As the preponderance of the evidence is against the claim for a higher rating, there is no doubt to be resolved and a higher rating is not warranted. As for a separate rating for objective neurological abnormality, the Veteran exhibited signs of radiculopathy in the right lower extremity on VA examination in February 2012. Although the straight leg test was negative, the Veteran exhibited moderate symptoms of intermittent pain and mild numbness. The VA examiner concluded that the Veteran experienced mild right leg radiculopathy of the sciatic nerve. Thus, the criteria for a separate 10 percent rating for right lower extremity radiculopathy under Diagnostic Code 8520 have been met. Extraschedular Consideration Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria under Diagnostic Code 5243 reasonably describe the disability level and the Veteran's symptomatology, including pain, functional loss, limitation of motion. In other words, the Veteran does not experience any symptomatology not already encompassed by the Rating Schedule. Therefore referral for extraschedular consideration for the service-connected right disability is not required under 38 C.F.R. § 3.321(b)(1). A Total Disability Rating for Compensation based on Individual Unemployability Although the Veteran is not currently employed, the Veteran did not raise and the record does not reasonably raised the claim for a total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). ORDER Entitlement to an initial rating higher than 20 percent for residuals of lumbar surgery to include intervertebral disc syndrome is denied. A separate 10 percent rating for mild incomplete paralysis of the sciatic nerve in the right lower extremity is granted. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs