Citation Nr: 1417081 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 08-22 945A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 20 percent for service-connected lumbar spine disability, variously diagnosed as lumbar strain and intervertebral disc syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from May 1963 to May 1965, and from January 1975 to August 1983. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In this rating, a previously assigned noncompensable rating for a service-connected lumbar spine disorder (characterized as lumbosacral strain) was increased to 20 percent disabling. The RO at that time recharacterized the disability as intervertebral disc syndrome; it was formally characterized as lumbar strain. In October 2012, the Veteran testified at a travel board hearing at the RO before the undersigned Veterans Law Judge. A hearing transcript (transcript) of that hearing has been associated with his claims folder. The claim was remanded by the Board in January 2013 so that additional development of the evidence could be conducted. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) Review of the Veteran's claims folder shows that compliance has now substantially occurred with the Board's remand orders, and that the Board may now proceed with adjudication of the claim. The Board does note that an effort to obtain private medical records from Dr. B. (pain management specialist) was undertaken pursuant to the Board's January 2013 remand. This physician, a pain management specialist, was noted to have a practice in Valdosta, Georgia. After the remand, records were associated with the file - with a waiver of initial RO consideration -- from a Dr. P, with a practice address in Valdosta. The Veteran has not informed VA that records from Dr. B were either forthcoming or unavailable. As such, the Board finds that compliance with the developmental mandates set out in the January 2013 remand have been satisfied. As noted by the Board in January 2013, historically, service connection was granted by the RO in January 1985 for lumbosacral strain; a zero percent rating was assigned, effective from August 29, 1983. The Veteran did not appeal this decision. A claim seeking an increased rating was received on June 23, 2005. The October 2005 RO rating decision increased to 20 percent the disability rating assigned for the lumbar spine disability, recharacterizing the disability as intervertebral disc syndrome. The RO also established the effective date for the 20 percent rating as June 23, 2005. As also pointed out by the Board in January 2013, the Veteran's representative, as part of a March 2009 VA Form 646, raised the issue of entitlement to service connection for bilateral lower extremity radiculopathy secondary to the Veteran's service-connected lumbar spine disability. At that time it was noted that the Agency of Original Jurisdiction (AOJ) had yet to adjudicate this raised claim. The Board in January 2013 requested that this adjudication be accomplished. Review of the record shows that this ordered development has yet to occur. The issue of entitlement to service connection for bilateral lower extremity radiculopathy secondary to the Veteran's service-connected lumbar spine disability has been raised by the record, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is AGAIN referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's low back disability is not productive of any incapacitating episodes during the past 12 months; favorable ankylosis of the entire thoracolumbar spine; or limitation of thoracolumbar forward flexion to 30 degrees or less, even considering any additional limitation of motion from pain and repetitive motion. 2. Resolving doubt in favor of the Veteran, his service-connected low back disability has been productive of neurologic impairment of the right lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. 3. Resolving doubt in favor of the Veteran, his service-connected low back disability has been productive of neurologic impairment of the left lower extremity that results in disability analogous to mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent rating for the service-connected lumbar spine disability, variously diagnosed as lumbar strain and intervertebral disc syndrome, have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 and 5243 (2013). 2. The criteria for a separate 10 percent rating, and no more, for radiculopathy of the right lower extremity have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2013). 3. The criteria for a separate 10 percent rating, and no more, for radiculopathy of the left lower extremity have been met. 38 U.S.C.A. §§ 1154(a) , 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As concerning the instant claim in which the Veteran is seeking a rating in excess of 20 percent for his service-connected lumbar spine disability, VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided in a July 2005 letter and a July 2008 Statement of the Case (SOC). The claim was subsequently readjudicated, most recently in an April 2013 supplemental SOC. Mayfield, 444 F.3d at 1333. The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO (with the exception of those records accompanied by a waiver of initial RO consideration, see March 2014 Appellate Brief Presentation) and the Board in connection with the Veteran's claim. Here, the Veteran has not informed VA of any existing records which may be helpful in the adjudication of his claim, and VA is not on notice of any evidence needed to decide the claim which has not been obtained. Following the January 2013 Board remand, the Veteran was afforded a VA examination in April 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is adequate, as it was predicated on a review of the pertinent medical evidence of record as well as on a physical examination and fully addressed the rating criteria that are relevant to rating the back disability in this case. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the increased rating issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). This includes his providing testimony before the undersigned at an October 2012 hearing. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. In addition, all relevant, identified, and available evidence has been obtained. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Factual Background/Laws and Regulations/Analysis The Veteran essentially contends that a disability rating in excess of 20 percent should be assigned for his service-connected lumbar spine disability. Pertinent medical evidence on file includes a January 2005 private X-ray report, showing findings of lumbar bulging discs and degenerative changes. A June 2005 private medical record includes a diagnosis of multiple lumbar spine herniated discs, together with spondylosis and stenosis with resultant lumbar radiculopathy. A July 2005 private electromyography report shows that needle examination found abnormalities in the bilateral lumbosacral paraspinals and bilateral lower extremities. Left side L5 nerve root dysfunction and right side non-specified level of radiculopathy was also reported. The report of an August 2005 VA spine examination reveals chronic low back pain, that radiates down into the posterior aspects of both legs to his heels. The Veteran was morbidly obese. He did not have either urinary or fecal incontinence. Examination showed thoracolumbar forward flexion initially limited to 60 degrees, extension to 20 degrees, bilateral axial rotation to 20 degrees, and bilateral and lateral bending limited to 20 degrees. All movements were limited by pain and stiffness. Range of motion was noted to have improved following toe touching exercises. The examiner commented that the Veteran did have some increased weakness, pain, fatigability after repetitive movement exercise. Increased incoordination was not demonstrated. Mild bilateral paraspinous muscle spasm was present. Neurologic examination showed the cranial nerves (II-XII) to be grossly intact. Some other neurologically-based symptoms were noted to be probably due to peripheral neuropathy due to diabetes mellitus. Straight leg raising testing was positive bilaterally at 45 degrees but Lasegue's sign was negative. Also, as verified by X-ray, intervertebral disc syndrome was noted to be present. The supplied diagnoses included history of lumbar strain in the military, degenerative lumbar disc disease, insufficient evidence for either right or left lumbar radiculopathy, and mild bilateral peripheral neuropathy of the lower extremities. A private medical initial consultation report dated in September 2005 shows that the Veteran was seen for a rehabilitation consultation secondary to chronic low back pain. He reported increased radicular symptoms in both legs. On examination, lumbar spine ranges of motion reportedly were decreased by at least 40 percent. Specific findings, in degrees, were not reported. The Veteran could straight leg raise both legs from a seated position equally about 40 degrees before experiencing radiating pain. The Veteran denied any bowel, bladder, or sexual dysfunction. A March 2007 private treatment record notes that the Veteran underwent L4-5 segmental decompression and interbody arthrodesis and posterior fixation in February 2007. Some post decompression dysesthesia in the L5 distribution was present. Muscle spasms were also reported. An April 2007 private medical record shows continuing mild post decompressive dysesthesia in the right L5 distribution. Additional private medical records on file includes an August 2012 pain management examination report. Therein it is shown that the Veteran described lumbar pain radiating bilaterally along the iliac crest. He denied any lower extremity dysesthesias. The Veteran added that leg weakness caused him to use a cane, and he reported falling periodically. Examination showed tenderness in the lower lumbar paraspinous areas. Normal tone was observed without spasms. Flexion was to 60 degrees, with mild discomfort on movement testing. The supplied diagnosis was status post L4-5 PLIF (posterior lumbar interbody fusion) with multilevel disc bulge, spondylosis and facet arthropathy. The Veteran's pain was noted to include myofascial, facet, discogenic and neuropathic components. At his October 2012 hearing conducted by the undersigned, the Veteran testified that his current treatment for his back, all from private medical providers, was helping to lessen his back pain. He added that he had received injections for pain relief. The report of a VA spine examination, conducted in April 2013, shows that the supplied diagnoses included lumbosacral spine, status post fusion; lumbar degenerative joint disease; and left L5 radiculopathy. The examiner also noted that the Veteran had intervertebral disc syndrome. Range of motion testing showed forward flexion to 70 degrees, with objective evidence of pain at 60 degrees. The Veteran did not have additional limitation of range of motion of the thoracolumbar spine following repetitive-use testing. He did, however, have less movement than normal, pain on movement, and disturbance of locomotion. He did not exhibit guarding or muscle spasm. Straight leg raising testing was negative. He had no radicular pain or any other signs or symptoms due to radiculopathy. It was also reported that the Veteran did not have other neurologic abnormalities or findings related to a thoracolumbar spine disorder (such as bowel or bladder problems/pathologic reflexes). As to the diagnosed intervertebral disc syndrome, the examiner pointed out that the Veteran did not have incapacitating episodes over the past 12 months. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's lumbar spine disability is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5237, pertaining to lumbosacral strain. See October 2005 rating decision. The Board again acknowledges that the RO later characterized this instant back disorder as one involving intervertebral disc syndrome, and that such has been here diagnosed. Disabilities of the spine are to be evaluated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula) (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome will be evaluated under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Here, however, based on the facts of the case, while intervertebral disc syndrome has been diagnosed, it has not been documented to have caused incapacitating episodes. Under the General Rating Formula, 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: A 20 percent evaluation requires 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 170 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 evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assignable for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation may be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). For VA compensation purposes, unfavorable ankylosis is "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis." General Rating Formula, Note 5. As noted, under Diagnostic Code 5243, intervertebral disc syndrome may be rated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent rating. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrants a 60 percent evaluation. Note (1) provides that for purposes of evaluations under Diagnostic Code 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). As noted, neurologic abnormalities are rated separately. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost, an 80 percent rating is for assignment. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Based on the evidence of record, the Board finds that a rating in excess of 20 percent for the Veteran's low back disability is not warranted. As noted, incapacitating episodes related to the Veteran's intervertebral disc syndrome have not been shown. Therefore, an increased rating, if deemed here assignable, needs to be found in the provisions set out in the General Rating Formula. Although the Veteran's thoracolumbar spine forward flexion has been limited throughout the appeal, there is no evidence of such limitation being to 30 degrees or less. Also, ankylosis of the spine has clearly not been demonstrated. The Veteran has consistently been able to move his spine throughout the period on appeal. Since a rating of 40 percent under the General Rating Formula requires forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, and the record does not indicate there was any ankylosis of the spine, a rating in excess of 20 percent is not warranted under the General Rating Formula. In addition, there is no indication in the record, that the Veteran's pain due to lumbar disability caused functional loss greater than that contemplated by the 20 percent rating assigned. 38 C.F.R. §§ 4.40, 4.45; DeLuca. The Board also notes that in the assignment of a 20 percent rating, it appears that the DeLuca factors and 38 C.F.R. § 4.40 and 4.45 have already been considered, as without taking into consideration the Veteran's complaints regarding his lumbar spine, a 20 percent rating might not be justified. Thus, the overall objective evidence fails to show that the Veteran's pain resulted in additional functional limitation such as to enable a finding that his lumbar disability picture more nearly approximates a 40 percent rating under either the General Rating Formula or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See also 38 C.F.R. §§ 4.40, 4.45; DeLuca. The Board will now assess the appropriate rating for the Veteran's neurological manifestations of his service-connected thoracolumbar spine disability. The Board finds that the medical evidence, as detailed above, and in resolving all reasonable doubt in favor of the Veteran, demonstrates no more than mild neurological manifestations of the Veteran's lumbar spine disability. In that regard, Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Under Diagnostic Code 8520, mild incomplete paralysis of sciatic nerve warrants a 10 percent disability evaluation. Review of the medical evidence of record reveals that the Veteran has somewhat consistently complained of radicular pain going from his lumbar spine into his legs. A review of the record shows multiple findings of neurological complaints and clinical findings relate to the lower extremities. While in the course of the August 2005 VA spine examination the examiner commented that neurological symptoms were probably related to diabetes, and while in August 2013 a VA examiner, while radiculopathy was diagnosed, commented to the contrary that no signs or symptoms were due to radiculopathy, other findings of record support a finding of neurological manifestations. These include those set out as part of private medical records dated in June 2005 (stenosis and radiculopathy) and July 2005 (electromyography findings of left side L5 nerve root dysfunction and right side non-specified level of radiculopathy. Also, in the course of the above-discussed August 2005 VA examination straight leg raising testing was positive. Thus, in light of the Veteran's ongoing complaints and the positive neurological manifestations shown in the course of this appeal, and in giving him the benefit of any doubt, the Board finds that the overall disability picture presented by the evidence indicates mild incomplete paralysis in the bilateral lower extremities, under the criteria found in Diagnostic Code 8520. The Board also finds that higher, 20 percent, ratings are not warranted under Diagnostic Code 8520 as the Veteran's radiculopathy symptoms do not result in "moderate" incomplete paralysis, as such level of disability is simply not objectively shown by the record. Extraschedular Consideration Finally, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's lumbar spine disability (mainly functional loss and limitation of motion) are contemplated by the applicable rating criteria. The effects of the Veteran's disability have been fully considered and are contemplated in the Rating Schedule as well in other pertinent regulations; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A rating in excess of 20 percent for service-connected lumbar spine disability, variously diagnosed as lumbar strain and intervertebral disc syndrome, is denied. Entitlement to a separate 10 percent rating for radiculopathy of the right lower extremity is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a separate 10 percent rating for radiculopathy of the left lower extremity is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs