Citation Nr: 1338672 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-30 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE 1. Entitlement to an initial increased rating for lumbar strain, currently evaluated as 10 percent disabling. 2. Entitlement to an initial increased rating for left leg radiculopathy associated with lumbar strain, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Wounded Warrior Project ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2006 to August 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), that granted an initial rating of 10 percent for lumbar strain, effective August 30, 2008. As the appeal developed, the Veteran was awarded a separate rating for radiculopathy of the left leg associated with lumbar strain, evaluated as 10 percent disabling since June 2, 2010. In his substantive appeal to the Board, the Veteran requested a hearing before a member of the Board. He was notified of his scheduled August 2013 hearing by letter in July 2013, but did not attend the hearing or subsequently request a new hearing. Thus, his hearing request is deemed withdrawn. FINDINGS OF FACT 1. The Veteran's lumbar strain has not been productive of limitation of flexion to 60 degrees or less; ankylosis, or incapacitating episodes due to intervertebral disc syndrome (IVDS), or neurological abnormality. 2. The medical evidence demonstrates objective signs of no more than mild left leg radiculopathy. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for lumbar strain have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5237, 5243 (2013). 2. The criteria for an initial rating in excess of 10 percent disabling for left leg radiculopathy associated with lumbar strain have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8520 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any outstanding private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). VA examinations were conducted in October 2008, June 2010, and May 2012. The Veteran has not argued, and the record does not reflect, that these examinations are inadequate for rating purposes. 38 C.F.R. § 3.159 (c)(4); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Sanders, 129 S. Ct. 1696; see also Dingess/Hartman, 19 Vet. App. at 486. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings, which 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. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. 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. Functional loss due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion is a factor. Weakness is also an important. 38 C.F.R. § 4.40. When evaluating the joints, factors to consider include less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine 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 disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. In that regard, Diagnostic Code 8520 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, and an 80 percent rating is assigned for complete paralysis of the sciatic nerve. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Under DC 5243, intervertebral disc syndrome is to be 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 rating when all disabilities are combined under 38 C.F.R. § 4.25. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. As per Note (1) of the DC, for purposes of evaluations under DC 5243, 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. Facts and Analysis After submitting his claim in September 2008, the Veteran was examined for VA purposes in October 2008. At that time, the Veteran complained of daily back pain that occasionally radiated into the lower extremities. He denied bowel or bladder incontinence and incapacitating episodes of low back pain. On physical examination, there was no evidence of abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Range of motion showed flexion to 90 degrees, although the Veteran complained pain beginning at 45 degrees; extension was to 15 degrees; bilateral rotation to 45 degrees; and lateral bending to 45 degrees. Repeated of range of motion did not change it, and the Veteran was not additionally limited by pain and in-coordination, fatigability, or lack of endurance. X-rays of the spine were normal. On examination by a private orthopedic surgeon, in July 2009, the Veteran complained of low back pain and numbness in the left leg. Range of motion showed forward flexion to 90 degrees and extension to 20 degrees. On VA examination in June 2010, the Veteran complained of pain, decreased range of motion, numbness in the left leg, restrictions on his daily duties, and the need for constant back braces and canes. On physical examination, gait was altered by use of cane. Range of motion showed forward flexion to 80 degrees without limitations following repetitive use due to pain, but with use of support from a cane. The Veteran declined to perform extension testing due to pain. Lateral rotation and flexion measured to 30 degrees bilaterally, without limitation following repetitive use. The VA examiner noted sensory impairment of the left leg and a positive straight leg raising test (Lasegue's sign). The VA examiner diagnosed lumbar degenerative disc disease with left leg radiculopathy. On VA examination in May 2012, the Veteran complained of back pain that radiated into his left leg. He stated that he experienced pain after sitting for more than one hour. On physical examination, guarding and/or muscle spasm was present, but did not result in abnormal gait or spinal contour. Range of motion showed forward flexion to 75 degrees; extension to 25 degrees; right lateral rotation to more than 30 degrees; left lateral rotation to more than 30 degrees, right lateral flexion to more than 30 degrees, and left lateral flexion to more than 30 degrees. The Veteran did not have additional limitation of range of motion following repetitive use. The Veteran had functional loss due to fatigability and pain on movement. There was no IVDS or incapacitating episodes in the past 12 months. The VA examiner noted sensory impairment of the left leg and a positive straight leg raising test (Laseque's sign). The VA examiner indicated mild left leg radiculopathy at L4/L5/S1/S2/S3, the sciatic nerve. The Veteran's lumbar strain is currently rated 10 percent disabling, effective August 30, 2008. The next higher rating under DC 5237 is 20 percent and requires evidence of either forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. The record in this case does not show the presence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, at any time during the appeal period, and the Veteran's forward flexion has consistently been in excess of 60 degrees. Although the Veteran complained of discomfort on motion, it did not actually result in functional impairment beyond that contemplated by the rating assigned. Furthermore, since bed rest has not been prescribed, a rating based on incapacitating episodes is not indicated. With respect to the neurological manifestations of the Veteran's lumbar strain, the Board notes that the Veteran has not reported and the evidence does not reflect that the Veteran had objective neurological abnormalities related to his lumbar strain prior to June 20, 2010. Although the Veteran reported pain that radiated into his left leg, the criteria for evaluating back disabilities take pain and other symptoms into account. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. On private and VA examinations, the Veteran denied objective neurological abnormalities such as bowel and bladder incontinence. In addition, there is no evidence of erectile dysfunction, a positive straight leg raising test (Lasegue's sign), any sensory impairment, motor abnormalities, or reflex impairment. VA examination reports dated in June 2010 and May 2012 show sensory impairment of the left leg and a positive straight leg raising test (Lasegue's sign). The May 2012 examiner indicated involvement of the sciatic nerve and characterized the Veteran's radiculopathy as mild. Diagnostic Code 8520 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, and an 80 percent rating is assigned for complete paralysis of the sciatic nerve. Here, the separate 10 percent rating for left leg radiculopathy associated with lumbar strain that the RO assigned is appropriate, but as the Veteran's disability picture does not more closely approximate moderate left leg radiculopathy, a higher rating of 20 percent is not warranted for any period during the appeal. Extraschedular Rating An extraschedular rating is warranted when the established schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability; the case presents other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and such an award is 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 adequately contemplate the manifestations of the Veteran's lumbar strain as they contemplate a wide variety of manifestations of functional loss, as noted in 38 C.F.R. §§ 4.40, 4.45, in addition to the factors set out in the diagnostic codes. The disability is productive of pain, limited motion, and neurological manifestations. These are contemplated in the pertinent rating criteria; and the rating criteria are adequate to evaluate the Veteran's disability. Referral for consideration of extraschedular rating is not warranted. Total Disability Rating Based on Individual Unemployability (TDIU) The Veteran is currently assigned a 100 percent schedular rating for posttraumatic stress disorder and he is currently pursuing a bachelor's degree. The Veteran has not expressly raised a TDIU claim, and this picture does not otherwise reasonably raise it. ORDER An initial rating in excess of 10 percent rating for lumbar strain is denied. An initial rating in excess of 10 percent disabling for left leg radiculopathy, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs