Citation Nr: 1342918 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 08-29 803A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for radiculopathy of the bilateral lower extremities. 2. Entitlement to an increased disability rating for a lumbar strain, rated as 20 percent disabling prior to January 25, 2012, and as 40 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of July 2006 of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO) that increased the Veteran's disability rating to 20 percent. The Veteran subsequently moved to Florida, and the St. Petersburg RO has assumed jurisdiction over the claim. This claim has a complex and convoluted procedural history. A June 1971 rating decision granted the Veteran service connection for lumbar strain and assigned a noncompensable rating. In April 2006, the Veteran filed a claim for increased ratings for his lumbar strain and right knee disabilities. The July 2006 rating decision on appeal granted the Veteran a 20 percent rating for his lumbar strain disability and a 20 percent rating for his right knee meniscal tear, both effective April 12, 2006. The Veteran filed a timely notice of disagreement (NOD) regarding these ratings, and on June 4, 2007, the RO issued a statement of case (SOC) denying increased ratings for the Veteran's lumbar spine and right knee disabilities. On June 11, 2007, the RO issued a rating decision proposing to reduce the Veteran's 20 percent ratings for his lumbar strain disability and residuals of right knee meniscal tear to 0 percent. A November 13, 2007 rating decision implemented the reduction of the Veteran's ratings for his lumbar strain disability and residuals of right knee meniscal tear by assigning 0 percent ratings for both disabilities effective February 1, 2008. In December 2007, the Veteran filed a NOD regarding the reduction of his disabilities, and in September 2008 the RO issued an SOC upholding the reductions. The Veteran filed a timely substantive appeal regarding the September 2008 SOC in October 2008. Thereafter, in an April 2009 rating decision, the RO increased the Veteran's rating for his lumbar strain to 20 percent disabling, effective February 1, 2008, and increased his rating for residuals of right knee meniscal tear to 10 percent disabling, effective February 1, 2008. The Veteran expressed his continued disagreement with his ratings in a July 2009 NOD. The RO then issued an SSOC in May 2011 denying higher ratings for both. In various substantive appeals to the Board, the Veteran requested a Board hearing; however, in June 2011 the Veteran withdrew his request for a hearing. In December 2011, the Board denied the Veteran's claim for an increased rating for his right knee, and it remanded his claim for an increased rating for a lumbar strain. The development ordered by the Board has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In an August 2012 letter, the Veteran raised a number of issues that have not been addressed by the RO. The issues of entitlement to service connection for a neck disability, for a disability characterized by swollen legs, and for bilateral carpal tunnel syndrome have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The holding of Rice is inapplicable here, as the Veteran has not contended that he cannot work on account of his service-connected back disability. In his February 2009 VA examination, the Veteran indicated that he retired in February 2008 as he was eligible to retire because of his age or duration of work. The issue of entitlement to service connection for radiculopathy of the bilateral lower extremities 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. Prior to January 25, 2012, the evidence does not show that the Veteran's lumbar strain resulted in flexion limited to 30 degrees or less or in favorable ankylosis of the entire thoracolumbar spine. 2. Since January 25, 2012, the evidence does not show that the Veteran's lumbar strain results in unfavorable ankylosis of the thoracolumbar spine. CONCLUSION OF LAW The criteria for an increased disability rating for a lumbar strain, rated as 20 percent disabling prior to January 25, 2012, and as 40 percent disabling thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.655, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters of May 2006 and August 2008 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). The August 2008 letter informed the Veteran of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Though this updated notice was provided after the initial adjudication, the claim was subsequently readjudicated, most recently in a June 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield, 444 F.3d at 1333-34. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. VA sought to obtain any records from the Social Security Administration; in February 2009, that agency replied that it was unable to locate any medical records. The RO made a formal finding of unavailability of these records in September 2010. 38 C.F.R. § 3.159(c)(2). VA examinations were conducted in May 2006, February 2009, and January 2012. Though the Board found the February 2009 examination to be inadequate, the Veteran has not argued, and the record does not reflect, that the other examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). These examinations contain sufficient information to rate the Veteran under the applicable Diagnostic Codes. There is no indication in the record that any additional evidence, relevant to the issues 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); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Entitlement to an Increased Rating Disability ratings are determined by applying a schedule of ratings 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. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Further, examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran is currently evaluated under the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5237, pursuant to the General Rating Formula for Diseases and Injuries of the Spine. The disability is evaluated 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. Under that Formula, a 20 percent rating requires thoracolumbar spine forward flexion 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 is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a, DCs 5235-5242. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, Code 5237, Note 2. All measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Code 5237, Note 4. 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). 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). 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. 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. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, 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," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As the Veteran's rating has already been staged, the Board must review the propriety of both the dates of the stages and the ratings assigned. When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Facts At a May 2006 VA examination, the Veteran complained of increasing back pain and of decreased range of motion. He also complained of radiating aching pain to his lower extremities. He denied suffering from weakness or numbness of his lower extremities, and he denied fecal or urinary incontinence. The Veteran reported being able to walk for 5-10 minutes before suffering from increased back pain. Upon examination, the Veteran had an erect posture, and symmetry in appearance and rhythm of spinal motion. The Veteran's spine was tender to palpation, and he had mild spasms. These spasms were not severe enough to result in guarding, did not result in an altered gait, and did not result in an abnormal spinal curvature. There was no evidence of spinal ankylosis. Sensory, reflex, and motor examinations were normal. The Veteran did not have any incapacitating episodes in the previous 12 months. Range of motion testing revealed that the Veteran had forward flexion of 90 degrees, with pain from 60 to 72 degrees. He had extension of 30 degrees with pain at 18. The Veteran had left and right lateral flexion of 30 degrees each way, and left and right lateral rotation of 45 degrees each way with pain beginning at 30 degrees. The Veteran's motion was limited by pain, but not by fatigue, weakness, or lack of endurance with repetitive motion. The examiner diagnosed the Veteran as suffering from a lumbar strain. A July 2006 VA spinal X-ray noted that the Veteran had anterior osteophyte formation throughout the lumbar spine. The intervertebral space of L1-L2 was minimally narrowed. The impression recorded was lumbar spondylosis and intervertebral space narrowing at the L1-L2 level. In his August 2006 notice of disagreement, the Veteran stated that his rating should be at least 30 percent, and he stated that he was waiting for a special harness to help him walk with less pain. In a July 2007 letter, the Veteran stated that he would soon be disabled, as he could hardly walk or stand. An October 2007 private X-ray reflects that the Veteran had straightening of the lumbar spine suggesting muscle spasm. The Veteran also had spurs at the vertebral margins, but the vertebral end plates and disc spaces were reported to be normal. In a November 2007 letter, the Veteran's chiropractor stated that recent X-rays showed degenerative changes throughout the entire spine. At a February 2009 VA examination, the Veteran complained of constant pain in his lumbar spine. The Veteran reported not being able to lift, carry, bend, walk, or stand for extended periods of time due to his back pain. The Veteran reported suffering from fatigue, decreased motion, stiffness, weakness, spasms, and pain. He denied flare-ups, and he denied any incapacitating episodes. The Veteran also denied suffering from any neurologic abnormalities such as leg weakness, paresthesias, and bowel and bladder incontinence. Upon examination, the Veteran's posture and head position were normal with symmetry in appearance. His gait was normal, and there was no abnormal spinal curvature. The Veteran suffered from guarding and pain with motion, but no spasms, atrophy, tenderness, or weakness were recorded. The Veteran had normal muscle and sensory examinations. Range of motion testing revealed that the Veteran had flexion to 60 degrees, extension to 20 degrees, left and right lateral flexion of 20 degrees each way, and left and right lateral rotation of 20 degrees each way. Though the examiner noted that the Veteran had pain with active motion, he did not record the points at which the Veteran's pain began and ended. Repetitive motion resulted in increased pain, but did not result in additional functional limitation. The examiner diagnosed the Veteran as suffering from a lumbar spine strain. At a January 2012 VA examination, the Veteran complained of daily low back pain. The Veteran used a cane to ambulate, and he indicated that he had occasional bladder incontinence and bilateral lower extremity radicular symptoms. The Veteran complained of flare-ups 2 to 3 times per year. Upon examination, the Veteran had no tenderness, guarding, or muscle spasms. The examiner reported that the Veteran's functional loss included less movement than normal and pain on movement. His strength, reflex, and sensory examinations were normal. He had a positive straight leg raising test, suggesting radiculopathy. The examiner indicated that the Veteran had mild intermittent pain of the left and right lower extremities involving the L2/L3/L4 nerve roots. The examiner reported no other neurologic abnormalities related to his back disability, including bowel or bladder problems. The Veteran was not reported to suffer from intervertebral disc syndrome. Range of motion testing revealed that the Veteran had forward flexion of 30 degrees with pain beginning at 30. He had extension of 10 degrees with pain at 10. The Veteran had left and right lateral flexion of 10 degrees each way with pain beginning at 10. He had left and right lateral rotation of 20 degrees each way with pain beginning at 20. The Veteran did not perform repetitive motions, stating that he was in too much pain. The examiner diagnosed the Veteran as suffering from a lumbar strain. Analysis For the period prior to January 25, 2012, the Veteran's lumbar strain is rated as 20 percent disabling. An increased, 40 percent rating would only be warranted with evidence that the Veteran's forward flexion was limited to 30 degrees or less, or that the Veteran had favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DCs 5235-5242. There is no evidence that the Veteran's lumbar strain resulted in symptoms equaling or approximating the 40 percent rating. The May 2006 VA examination recorded flexion of 90 degrees with pain from 60 to 72 degrees. As pain began at a level far exceeding the 30 degree threshold, an increased rating is not warranted. Though the Board does not consider the range of motion readings from the February 2009 VA examination to be adequate, there is no indication in either VA or private treatment records that the Veteran's flexion was ever limited to 30 degrees or less during this period. Further, neither the VA examinations nor the private treatment records show that the Veteran's spine is ankylosed. Regarding the DeLuca provisions and functional loss, the May 2006 VA examination showed that the Veteran's actual range of motion exceeded the threshold for the 20 percent rating, but based on the Veteran's pain and functional loss, the higher rating was awarded. Functional loss has thus already been considered, and no higher rating for this period is warranted. For the period since January 25, 2012, the Veteran's lumbar strain is rated as 40 percent disabling. An increased, 50 percent rating would only be warranted with evidence that the Veteran had unfavorable ankylosis of the thoracolumbar spine. 38 C.F.R. § 4.71a, DCs 5235-5242. Neither the January 2012 VA examination nor any previous VA or private medical evidence has indicated that the Veteran suffers from ankylosis at all. As the Veteran has never been found to suffer from intervertebral disc syndrome or incapacitating episodes, rating the Veteran under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. 38 C.F.R. § 4.71a, DC 5243 As to extraschedular ratings, the evidence shows that the Veteran's service-connected lumbar strain results in decreased and painful motion; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms, and the Veteran's rating takes his functional loss into account. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected back disability is adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). The preponderance of the evidence is against the claim for an increased rating for a lumbar strain; there is no doubt to be resolved; and an increased rating for a lumbar strain is not warranted. ORDER Entitlement to an increased disability rating for a lumbar strain, rated as 20 percent disabling prior to January 25, 2012, and as 40 percent disabling thereafter is denied. REMAND At his January 2012 VA examination, the Veteran complained of radiculopathy into his lower extremities, and the examiner indicated that the Veteran did suffer from such symptoms. The examiner, however, did not state whether this radiculopathy is secondary to the Veteran's service-connected lumbar strain. The case must be remanded in order that it be determined whether the Veteran's radiculopathy is related to his service-connected lumbar strain. Accordingly, the case is REMANDED for the following actions: 1. Obtain an opinion regarding the etiology of the Veteran's radiculopathy. Return the claim file to the examiner who conducted the Veteran's January 2012 VA examination, or to any other appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, VBMS, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to the virtual file, any relevant treatment records contained in the virtual file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. If the examiner determines that it is impossible to offer an opinion regarding the Veteran's radiculopathy without scheduling him for an examination, then such an examination must be scheduled. The examiner is to state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's radiculopathy of the bilateral lower extremities is proximately due to, the result of, or aggravated by his service-connected lumbar strain. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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. 2013). ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs