Citation Nr: 1339726 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 13-27 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine, to include the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Carolyn J. Kerr, Agent ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from January 1980 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which granted service connection for degenerative arthritis of the lumbar spine and assigned a 10 percent disability rating effective January 28, 2010. In an April 2013 rating decision, the RO granted service connection for radiculopathies of the right and left lower extremities and assigned 10 percent ratings bilaterally effective April 5, 2011, and denied entitlement to a TDIU due to service-connected disabilities. FINDINGS OF FACT 1. The Veteran's degenerative arthritis of the lumbar spine is characterized by forward flexion of the thoracolumbar spine to 70 degrees, without muscle spasm, guarding, or ankylosis. 2. The only service-connected disability which precludes the Veteran from securing or following a substantially gainful occupation is his dysthymic disorder with major depression, for which the schedular rating is not less than total. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine have not been met. 38 C.F.R. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, DC 5242 (2013). 2. The criteria for an award of TDIU benefits are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The claim of entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine arises from a disagreement with the initial disability rating that was assigned following the grant of service connection for degenerative arthritis of the lumbar spine. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As to the claim of entitlement to a TDIU due to service-connected disabilities, VA's notice requirements were satisfied by a March 2012 letter which advised the Veteran of the criteria for establishing a TDIU and provided him with notice regarding the assignment of disability ratings and effective dates. The claim was most recently adjudicated in an April 2013 statement of the case. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records and VA treatment records. VA provided the Veteran with examinations of his lumbar spine in August 2010 and March 2012, and provided associated examinations of his nerves and male reproductive system in March 2013. The Board finds that these examinations are adequate because the examiners discussed the Veteran's medical history, described his lumbar spine and associated disability symptoms in detail, and supported all conclusions with analyses based on objective testing and observations. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007). Additionally, the VA examiners fully described any functional effects caused by the Veteran's claimed disorders. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). For the foregoing reasons, the Board concludes that VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis The Veteran contends that he is entitled to a higher initial disability evaluation for his degenerative arthritis of the lumbar spine, to include a TDIU due to service-connected disabilities. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where, as here, the question for consideration is the propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). Under 38 C.F.R. § 4.71a, there are several diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected lumbar spine disorders. A lumbar spine disability may be rated pursuant to the general rating formula for diseases and injuries of the spine set forth in DCs 5235-5242. The Veteran's current rating is under DC 5242. Under the general rating formula, a 10 percent rating requires that the condition be manifested by 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 rating requires that the condition be manifested by 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 rating requires that the condition be manifested by forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. Pursuant to Note 1, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic code. Sciatic nerve disabilities are rated at 80 percent where there is complete paralysis; the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. A 60 percent rating applies where there is severe incomplete paralysis with marked muscular atrophy. A 40 percent rating applies where there is moderately severe incomplete paralysis. Moderate incomplete paralysis is rated at 20 percent. Mild incomplete paralysis is rated at 10 percent. 38 C.F.R. § 4.124a, DC 8520. 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. 38 C.F.R. § 4.71a, Note 2. Intervertebral Disc Syndrome is rated under Diagnostic Code 5243, based upon the frequency of incapacitating episodes. 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. Here, the March 2012 VA examiner found that the Veteran does not have intervertebral disc syndrome of the thoracolumbar 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). The Court of Appeals for Veterans Claims (Court) has 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 (38 C.F.R. §§ 4.40), 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 (38 C.F.R. § 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. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Veteran is currently rated at 10 percent under DC 5242 for degenerative arthritis of the lumbar spine, and at 10 percent each under DC 8520 for mild incomplete paralysis of the sciatic nerves of the left and right lower extremities. The Board finds that the Veteran's 10 percent disability rating for degenerative arthritis of the lumbar spine is consistent with the rating code. Specifically, the August 2010 VA examiner found that the Veteran had forward flexion to 70 degrees, and a combined range of motion of the thoracolumbar spine of 160 degrees. Similarly, the March 2012 VA examiner found that the Veteran had forward flexion to 80 degrees, and a combined range of motion of the thoracolumbar spine of 230 degrees or greater. Likewise, both the August 2010 and the March 2012 VA examiners found that the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Additionally, the August 2010 VA examiner found that the Veteran does not have thoracolumbar spine ankylosis. Consequently, a disability rating in excess of 10 percent is not warranted under the general rating formula for diseases and injuries of the spine. The Board further finds that the Veteran's 10 percent disability ratings for the associated left and right lower extremity mild incomplete paralysis of the sciatic nerves are also consistent with the rating code. Specifically, the March 2012 VA spine examiner found mild numbness and intermittent pain in the Veteran's left lower extremity, and the March 2013 VA nerves examiner found mild incomplete paralysis of the left sciatic nerve. No more severe findings were present in the March 2012 and March 2013 VA examiners' testing of the right sciatic nerve. The Board further finds that no additional disability rating is warranted for the Veteran's reported erectile dysfunction or urinary incontinence, based on the March 2013 VA male reproductive system examiner's findings that those disorders are unrelated to his degenerative arthritis of the lumbar spine. The examiner based his conclusion on his review of the claims file, physical examination, experience and expertise, and reference to a standard medical textbook, as well as the fact that the Veteran receives no treatment for those reported disorders. 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). Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's lumbar spine and associated bilateral lower extremity radiculopathy disabilities, which include pain and limited motion. The rating criteria are therefore adequate to evaluate those disabilities, and referral for consideration of an extraschedular rating is not warranted. In summary, the Board finds that the symptoms attributable to the Veteran's lumbar spine and associated bilateral lower extremity radiculopathy disabilities are neither exceptional nor unusual, and thus do not warrant referral for an extraschedular rating. Finally, the Court has held that a TDIU is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The determination of a single disability as ratable at 60 or 40 percent or more includes consideration of disabilities involving one or more lower extremities as a single disability. Id. Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see also Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The record shows that a TDIU due to service-connected disabilities is not warranted. Specifically, the April 2012 VA psychiatrist examiner's opinion that the Veteran's service connected "Dysthymic Disorder...result[s] in his inability to obtain and sustain gainful employment" and for which he is rated 100 percent, renders a TDIU rating that contemplates psychiatric impairment inappropriate, since it would be evaluating the same disability twice. 38 C.F.R. § 4.14. The Board finds unpersuasive the Veteran's assertions that his unemployability also results from his lumbar spine disorder and/or his associated service-connected bilateral lower extremity radiculopathy. In that regard, the Veteran stated at his August 2010 VA spine examination that his back pain caused his retirement. The Veteran's representative provided similar argument in an April 2012 letter. As an initial matter, the Veteran's remaining service-connected disabilities-degenerative arthritis of the lumbar spine, rated 10 percent disabling; radiculopathy of the left lower extremity, rated 10 percent disabling; and radiculopathy of the right lower extremity, rated 10 percent disabling-do not meet the criteria for eligibility for a TDIU under 38 C.F.R. § 4.16(a). As such, the question in this case is whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities such that referral to the Director of Compensation and Pension Service is warranted. 38 C.F.R. § 4.16(b). For the foregoing reasons, such referral is unwarranted in this case. The Board finds that the Veteran's assertions of unemployability due to his service-connected lumbar spine disorder and/or his associated bilateral lower extremity radiculopathy are outweighed by the more probative evidence to the contrary. Specifically, an August 2010 VA spine examiner found that the Veteran's lumbar spine condition resulted in only the assignment of different duties due to problems with lifting and carrying; he also found only mild effects on the Veteran's recreation, exercise, and chores. Furthermore, a March 2012 VA spine examiner determined that the Veteran's thoracolumbar spine condition impacts his ability to work only to the extent that it limits his ability to bend and twist. Moreover, a March 2013 VA examiner determined that the Veteran's peripheral nerve condition and/or peripheral neuropathy do not impact his ability to work. The Board finds that the opinions of each of the aforementioned VA examiners warrants greater probative weight as to the effects of the Veteran's service-connected spine and neuropathic disabilities on his employment than do the Veteran's own assertions because of each examiner's medical experience and expertise in evaluating the severity of disabilities. Moreover, in light of the August 2010 VA spine examiner's determination that the effects of the Veteran's spine disability on his usual daily activities are "mild," the Board further finds that the Veteran's attribution of his unemployability to his spine disorder is so inconsistent with the level of severity as to lack credibility. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Furthermore, the Board finds that the Veteran's occupational limitations to lifting, carrying, bending, and twisting are insufficient by themselves (i.e., without consideration of his service-connected dysthymic disorder with major depression) to render him unable to secure or follow a substantially gainful occupation under the circumstances of his education, training, and work history. Specifically, the Veteran has completed two years of high school, and has worked as a painter and an inspector. Absent his service-connected dysthymic disorder with major depression, the Board finds that the most probative evidence of record shows that his occupational limitations of his service-connected spine and associated neuropathic disabilities would not render him unable to secure and follow a substantially gainful occupation such as inspector. In light of the 100 percent rating for the Veteran's service-connected dysthymic disorder with major depression, and in the absence of other service-connected disabilities which render him unable to secure or follow a substantially gainful occupation, the claim of entitlement to a TDIU due to service-connected disabilities is denied. (CONTINUED ON NEXT PAGE) ORDER An evaluation in excess of 10 percent for degenerative arthritis of the lumbar spine is denied. The claim for entitlement to a TDIU due to service-connected disabilities is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs