Citation Nr: 1343357 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 09-30 615 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating higher than 60 percent for degenerative disc disease (DDD) of the lumbar spine with radiculopathy to the lower extremities ("low back disability"). 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Michael A. Steinberg, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from March to July 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2011, the Veteran presented testimony in support of his claim at a hearing before the undersigned Veterans Law Judge (VLJ). The issue of entitlement to a TDIU is generally considered "part and parcel" of a claim for an increased disability rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran has claimed entitlement to a TDIU, which was denied by the RO in January 2011. The Veteran filed a timely notice of disagreement, but a Statement of the Case (SOC) has not yet been issued. Accordingly, this issue is remanded to the RO for further development. FINDING OF FACT The Veteran's low back disability is manifested by limited forward flexion of the thoracolumbar spine to 30 degrees, as well as neurologic symptoms of hypoactive and absent knee and ankle jerk and decreased sensation in the lower extremities, but without marked muscle atrophy. He does not have ankylosis of his entire spine. CONCLUSION OF LAW The criteria are not met for a rating higher than 60 percent for the Veteran's low back disability. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.25, 4.40, 4.45, 4.59, 4.71a, 4.124a, DCs 5243, 8520 (2013); 38 C.F.R. § 4.71a, DC 5293 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claim Assistance Act (VCAA) The VCAA provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of the evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him in obtaining; and, (3) that he is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran was provided the required notice in September 2008, prior to the initial adjudication of the claim by the RO. The Veteran has not alleged any deficiency in the notice that had an unduly prejudicial effect on his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The VCAA further provides that VA has a duty to assist in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). This duty has been satisfied. The Veteran's STRs and post-service medical records, including records from the Social Security Administration, have been obtained and associated with the claims file. Further, the Veteran was provided with VA compensation examinations in December 2008 and December 2010 to assess the severity of his low back disability, which included a thorough examination, as well as a review of the claims folder and the Veteran's relevant history. The resulting VA examination report is therefore found to be adequate for adjudicatory purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file. Neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. With respect to his May 2011 personal hearing, 38 C.F.R. § 3.103(c)(2) requires the VLJ who conducts a hearing to fully explain the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the VLJ explained that the issue was an increased rating for the Veteran's low back disability. The Veteran presented testimony regarding the severity of his symptoms, thus indicating that he had actual knowledge of the type of evidence and information needed to substantiate his claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). In regard to potentially overlooked evidence, the presiding VLJ asked about current and recent treatment, and whether the Veteran was in receipt of Social Security benefits. Accordingly, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can proceed to adjudicating this claim based on the current record. Entitlement to an Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). Separate diagnostic codes (DCs) identify the various disabilities. See 38 C.F.R. Part 4 (2013). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2013). Pyramiding, the evaluation of the same disability under various diagnoses, is prohibited. 38 C.F.R. § 4.14 (2013). Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When evaluating musculoskeletal system disabilities that are based on limitation of motion, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2013). Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2013). Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2013). The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). Indeed, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). And although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, although pain may cause functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40 . The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's medical history, diagnosis, and demonstrated symptomatology. In deciding what rating is appropriate, consideration must be given to the history of the disability and all potentially applicable DCs. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). However, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim for a higher rating was filed until VA makes a final decision on the claim. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Veteran's low back disability is currently rated as 60 percent disabling, effective since January 28, 1993, under Diagnostic Code (DC) 5243. It was originally rated under DC 5293; however, the regulations for evaluating spinal disabilities were revised effective September 23, 2002. 67 Fed. Reg. 54345 (August 22, 2002). Additional revisions were made to the evaluation criteria the following year, as of September 26, 2003. These revisions included renumbering the DCs; the former DC 5293, is now DC 5243. In such cases, if the new law or regulation applies to the facts, it may only be applied to the period of time beginning with the effective date of the new law or regulation. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, if use of the older criteria results in a more favorable outcome, then that criteria may be applied prospectively without any such limitations as to the effective date of its issuance. See VAOPGCPREC 7-2003. The Veteran's 60 percent disability rating is calculated pursuant to the former DC 5293, which provided for a 60 percent rating when the evidence showed pronounced intervertebral disc syndrome (IVDS), with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. See 38 C.F.R. § 4.71a, DC 5293 (1993). Under the 1993 version of section 4.71a, a rating higher than 60 percent is warranted only if the evidence shows residuals of a fractured vertebra with cord involvement that left the claimant bedridden or requiring long leg braces, or that his entire spine is ankylosed in an unfavorable angle, with marked deformity and involvement of major joints or without other joint involvement. Id; DCs 5285, 5286. Under the current version of the section 4.71a, DDD is evaluated in one of two ways, either based on the total duration of incapacitating episodes over the previous 12-month period, or by assigning separate evaluations for the orthopedic and neurologic manifestations and then combining them under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243 (2013). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for limited forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, a 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 warranted for limited forward flexion of the thoracolumbar spine great than 30 degrees but not greater than 60 degrees; or, a 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 limited forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a (2013). In regards to incapacitating episodes during the a 12-month period, a 10 percent rating is warranted for episodes having a total duration of at least one week but less than two weeks. A 20 percent rating is warranted for episodes having a total duration of at least two weeks, but less than four weeks. A 40 percent rating is warranted for episodes having a total duration of at least four weeks, but less than six weeks. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks. Id. In regards to neurologic manifestations, DC 8520 pertains to the sciatic nerve. Under DC 8520, an 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, there is no active movement possible in the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. A 60 percent rating is warranted for incomplete paralysis when the symptoms are severe with marked muscular atrophy; a 40 percent rating when the symptoms are moderately severe; a 20 percent rating when the symptoms are moderate; and, a 10 percent rating when the symptoms are mild. See 38 C.F.R. § 4.124a , DC 8520 (2013). Turning to the evidence, the December 2008 VA examination, the Veteran complained of numbness on the lateral foot bilaterally, intermittent muscle spasms in the back, and a decreased range of motion. He denied having bowel or bladder incontinence. He did not use any assistive devices, and did not have any incapacitating episodes in the preceding 12 months where bedrest was prescribed by a physician. He had an antalgic gait, and flattening of lumbar concavity. His flexion was to 50 degrees, where painful motion began; extension to18 degrees, where painful motion began; right lateral flexion to 10 degrees, where painful motion began; left lateral flexion to 16 degrees, where painful motion began; and, right and left rotation to 22 degrees, where painful motion began. Motion was not further limited by repetitive motion. There was no objective evidence of muscle spasm, but there was guarding due to pain. Sensation to pinprick was intact except for the right fifth toe, and the anterior and lateral thigh bilaterally. Strength and reflexes were normal bilaterally. He was diagnosed with sciatica symptoms in both lower extremities and lumbar radiculopathy to both lower extremities, but without associated weakness. In a January 2009 statement, the Veteran listed the problems his low back disability causes him: pain across lower back daily, pain going down both legs, intense pain in the back and legs by noon, intense pain in the back and legs at the end of the day, intense pain all day long that increases the longer he works, feeling miserable every day, the inability to do tasks he used to be able to do at work, inability to assist patients on and off the table at work, difficulty walking and an altered gait, every step causes pain in legs or back, cannot stand back up after stooping, and standing or sitting or walking for extended periods causes pain in the back, buttocks, legs and feet. At the December 2010 VA examination, the Veteran's forward flexion was to 30 degrees, extension to 15 degrees, left lateral flexion to 20 degrees, left lateral rotation to 15 degrees, right lateral flexion to 15 degrees, and right lateral rotation to 15 degrees. Combined range of motion was 110 degrees. He did not have additional limitation of motion after repetition. Left knee and ankle jerk were hypoactive, right knee jerk was hypoactive, and right ankle jerk was absent. There was objective evidence of thoracolumbar sacrospinalis, of left and right spasm. Sensory examination revealed decreased sensation to pain and vibration on the right side, absent sensation of light touch on the right side, and decreased sensation to pain, vibration, and light touch on the left side. Motor examination was normal. He did not show muscle atrophy. He did not have fecal or urinary incontinence. He reported no incapacitating episodes. His low back disability caused increased absenteeism at work, and decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength in the lower extremities, and pain. The examiner opined that the Veteran could do sedentary employment. An April 2011 lumbar spine questionnaire, completed by the Veteran's private physician, indicates the Veteran had very limited bending forward flexion and lateral flexion. He was noted to have muscle spasm, abnormal gait, sensory loss, reflex changes, tenderness, and muscle weakness; but not to have swelling, muscle atrophy, or crepitus. He opined the Veteran could not work. He did not indicate the need for an assistive device. At the May 2011 hearing, the Veteran attested to being incapacitated between eight and ten days per month. He also said that he quit his job as an X-ray technician due to his low back disability, and that he was in receipt of SSA disability benefits due to his low back disability. Based on the foregoing, the Board does not find that a rating in excess of 60 percent is warranted for the Veteran's low back disability at any time during the pendency of his claim. The evidence does not show that the Veteran's entire spine is ankylosed, nor does it show that he has the residuals of a fractured vertebra with cord involvement that left him bedridden or requiring long leg braces. 38 C.F.R. § 4.71a, DCs 5285, 5286, 5293 (1993); 38 C.F.R. § 4.71a, DC 5243 (2013). He is in receipt of the highest rating that can be based on incapacitating episodes. Therefore, the orthopedic and neurologic manifestations of his low back disability will have to be separately analyzed, rated, and combined to determine whether the evidence supports the assignment of a higher rating. The Veteran's most restricted motion was noted in December 2010, when he could flex forward to only 30 degrees. Limited range of motion in the thoracolumbar spine to 30 degrees results in a 40 percent rating under DC 5243, the highest rating using range of motion measurements that does not require ankylosis. In regards to neurologic abnormalities, the Veteran has neurologic manifestations, including hypoactive and absent knee and ankle jerk, and decreased sensation in the lower extremities. He has not been shown to have muscle atrophy, however, thus the maximum rating he can receive under DC 8520 is 40 percent, for moderately severe incomplete paralysis of the sciatic nerve. When the range of motion component is combined with the neurologic component, this results in a rating of 64 percent, which is rounded to 60 percent. 38 C.F.R. § 4.25 (2013). The Veteran has reported intense and constant pain. The Veteran is competent to make this assertion, and the Board finds him credible. However, his statements of pain are not very probative, as he is already in receipt of the highest rating pertaining to limited motion that does not require ankylosis. Thus, additional functional loss due to pain or painful motion cannot be used to increase his rating to the next level, as the next level requires ankylosis, which he does not have. 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran reported having between 8 and 10 days of incapacitating episodes per month, which results in approximately 17 weeks of incapacitating episodes per year. As noted above, the Veteran is already in receipt of the highest rating that can be assigned based on incapacitating episodes. Further, the evidence does not suggest that the described episodes involved prescribed bedrest and treatment by a physician, as defined in Note (1) of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DC 5243 (2013). Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 60 percent for the Veteran's low back disability at any time during the appellate period. As such, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013). Extraschedular Consideration The Board has considered whether the claim should be referred for an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). Although an assigned rating may not completely account for each individual veteran's circumstances, generally it is still adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). In exceptional situations where the rating criteria is inadequate to describe the disability, it may be appropriate to refer the case for extraschedular consideration, because the Board is precluded by regulation from assigning extraschedular ratings in the first instance. 38 C.F.R. § 3.321(b)(1). Determining whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) involves three steps. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. See id. If the rating criteria reasonably describe the disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the disability, the Board must determine whether the disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then the third step requires the case to be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Services to determine whether the disability requires the assignment of an extraschedular rating. Id. The Board finds that referral for extraschedular consideration is not warranted in this case. The Veteran's reported symptoms of pain, limited motion, and moderately severe neurologic abnormalities are contemplated by the rating criteria, as discussed above. He has asserted that his low back prevents him from doing activities he used to do, such as helping patients on and off the examination table. He also has difficulty walking with an abnormal gait, and cannot sit or stand for prolonged periods of time. These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet.App. at 37. The Board finds that the schedular criteria reasonably describes the Veteran's disability picture. In regard to his testimony that he has between 8 and 10 incapacitating episodes per month, the Board reiterates that the evidence does not support that his doctor prescribed bedrest at this frequency. There are no symptoms left uncompensated or unaccounted for in his assigned schedular ratings for these disabilities. The evidence, then, does not indicate his low back or left knee disabilities present "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (2013). The mere fact that circumstances specific to a particular claimant may cause the effects of a service-connected disability to be more profound in that claimant's case does not ordinarily provide a basis for extraschedular consideration. Id. Rather, the impairment must be one that is so unusual as to be unanticipated by the rating criteria. See id. As the evidence does not support the existence of any unusual symptoms that are not contemplated by the schedule, referral for extraschedular consideration is not warranted. ORDER The claim of entitlement to a disability rating higher than 60 percent for degenerative disc disease (DDD) of the lumbar spine with radiculopathy to the lower extremities is denied. REMAND The RO denied the Veteran's claim for TDIU in January 2011, and the Veteran filed a timely Notice of Disagreement shortly thereafter. Review of the Veteran's physical and virtual claims files fails to show that an SOC has been issued. Where a notice of disagreement has been filed but an SOC has not been issued, the claim must be remanded by the Board so that an SOC may be issued. Accordingly, the case is REMANDED for the following action: The RO should evaluate the evidence of record, and issue a statement of the case (SOC) to the Veteran, with a copy to his representative, addressing his requests to reopen claims for tinnitus and a lower back disability. The Veteran is advised that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning this claim. The Veteran 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). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs