Citation Nr: 1419209 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 07-39 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent traumatic arthritis of the lumbar spine. 2. Entitlement to a separate rating for left side lumbar spine radiculopathy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Stanley, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to May 1991. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision by the Ft. Harrison Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded in September 2011 and August 2013. In December 2013, following the August 2013 Board remand, the RO granted a separate 10 percent rating for right lower extremity radiculopathy associated with the Veteran's low back disability. The Veteran has not expressed disagreement with that determination. The question of a separate rating for left lower extremity radiculopathy remains for appellate review. In a January 2014 Written Brief Presentation, the Veteran's representative argues that a prior grant of service connection for ischemic heart disease with a 60 Percent rating has raised the issue of entitlement to a total rating based on individual unemployability (TDIU). The Board does not interpret this communication as raising a TDIU issue with regard to the low back disability, but as a separate claim. The Board therefore believes the most appropriate course of action is to refer the TDIU issue to the RO for adjudication. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's service-connected traumatic arthritis of the lumbar spine is not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome having a total duration of at least four weeks, but less than six weeks, during a 12 month period. 2. The Veteran does not suffer from radiculopathy of the left lower extremity associated with his service-connected low back disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for traumatic arthritis of the lumbar spine are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, DCs 5010-5243 (2013). 2. The criteria for a separate rating for radiculopathy of the left lower extremity are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The intended effect of the regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. Duty to Notify After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. In a letter sent in October 2006, the claimant was informed of the information and evidence necessary to warrant entitlement to an increased rating for a low back disability. Moreover, in this letter, the appellant was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Board notes that the October 2006 letter was sent to the appellant prior to the May 2007 rating decision denying an increased rating for a low back disability. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to issue additional VCAA notice letters. On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In the instant case, the October 2006 VCAA letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. At this point the Board acknowledges the decision of the United States Court of Appeals for Veterans Claims (Court) in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) which noted that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. An additional VCAA letter issued in March 2008 is in compliance with Vazquez-Flores to the extent that it included such information as the appropriate rating criteria for rating the service connected low back disability at issue. This letter also notified the Veteran that the impact of this disability on his "daily life" was for consideration, although the U.S. Court of Appeals for the Federal Circuit recently reversed the Court's holding in Vazquez-Flores to the extent the Court imposed a requirement that VA notify a Veteran of alternative diagnostic codes or potential "daily life" evidence. See Vazquez-Flores v. Shinseki, No. 08-7150 (Fed. Cir. Sept. 4, 2009). In this case, the Board recognizes that the March 2008 VCAA notice was provided after the initial decision. However, the deficiency in the timing of this notice was remedied by readjudication of the issues on appeal in subsequent supplemental statements of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency in the course of his appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). These facts notwithstanding, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (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 v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations with respect to the claim for increased rating for a low back disability. The record as it stands includes sufficient competent evidence. The Veteran's in-service, private, and VA records have been obtained. The Board acknowledges that in the October 2013 VA examination report, the examiner noted two additional private treatment records currently not associated with the claims file that were provided by the Veteran at the time of the examination. These were thoroughly summarized by the examiner, pertained to the Veteran's history of right lower extremity radiculopathy symptoms, and do not bear on the issues before the Board. The Veteran has been afforded VA examinations focused upon these claims on appeal. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to adjudicate the claims for an increased rating the Veteran's low back disability and separate rating for left lower extremity radiculopathy, and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant as relevant to the issues adjudicated herein. The Board finds the duty to assist has been met. Legal Criteria, Factual Background, and Analysis Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. Low Back Disability In a May 1993 rating decision, the RO granted service connection for traumatic arthritis of the lumbar spine at a 10 percent evaluation under Diagnostic Codes 5010-5295 (indicating that the criteria for both traumatic arthritis and lumbosacral strain were considered in rating the disability). In a May 1997 rating decision, the RO granted an increased rating to 20 percent under those same diagnostic codes. Disabilities and injuries of the spine are now evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5243. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a (2013). Notes appended to the rating formula for diseases and injuries of the spine specify that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id., Note (2). Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion generally recognized by VA. Id., Note (3). Further, the term "combined range of motion" refers to "the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation"; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. Id., Notes (2) and (4). Note (5) provides that, 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. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. Under criteria for intervertebral disc syndrome, a 10 percent evaluation is indicated where there was evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent evaluation is indicated where there was evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation, under those same regulations, required demonstrated evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (effective from September 23, 2002 to September 25, 2003), Diagnostic Code 5243 (effective September 26, 2003). The Veteran contends that a rating in excess of 20 percent is warranted for his service connected low back disability. For reasons hereinafter set forth, the Board must conclude that the preponderance of the evidence is against a finding that the criteria for a rating in excess of 20 percent have been met at any time during the period contemplated by this appeal. As set forth above, an increased rating of 40 percent for the service connected low back disability would require forward flexion of the thoracolumbar spine to be 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 40 percent rating could also be assigned if there were incapacitating episodes of IDS having a total duration of at least four weeks, but less than six weeks during a 12 months period. A June 2006 private treatment record from Michael Luckett M.D. indicates that the Veteran reported chronic back pain which was becoming more persistent and stated that the limitations of walking were predominantly due to the pain in his right hip which he had been told would need to be replaced. The Veteran attributed 90 percent of his problem to his right hip and 10 percent to his low back. X-rays of the low back showed some joint space narrowing in the lower lumbar spine and the report states that the Veteran's forward flexion was to between 90 and 100 degrees without signs of pain or impediment. The physician found persistent low back pain with some degenerative disc disease of the lumbar spine. A July 2006 private treatment record from Michael Luckett M.D. indicates that the Veteran experienced back pain, but reported that this was a longstanding symptom that he had learned to live with and that it was manageable so long as he was not too active. A July 2006 private treatment record from the Monarc Clinic indicates that the Veteran reported some back pain along with pain in his right hip for which he was seeking treatment. On October 2006 VA examination, the Veteran's forward flexion was to 70 degrees. Repetition of motion showed no change in the range of motion. The Veteran reported he could probably walk a mile and stand for several hours. The Veteran also reported that about twice per week he experienced back pain mid to late in the day which usually was better in the evening. The examiner found no additional limitation of function duce to pain, fatigue, weakness, lack of endurance or incoordination. On October 2007 VA examination, the forward flexion was to 65 degrees with no reports of pain. The Veteran reported experiencing back pain off and on, but still engaging in recreational activities and being able to complete all daily activities. The Veteran also reported he was employed full time and that his back pain has never caused him to miss work. The examiner reported that the Veteran's gait was normal and that he did not report pain on forward flexion. A September 2011 MRI showed slight narrowing of the disc at L1-2 with a mild posterior disc bulge and evidence of a central disk bulge at the L4-5 resulting in root impingement. On October 2011 VA examination, forward flexion was to 60 degrees and repetitive motion showed no change in forward flexion. The Veteran's muscle strength and reflexes were normal in all tests. Veteran reported that back pain was ongoing, but he had learned to cope with it and did not use an assistive device. He also reported that he was semi-retired and the examiner noted that his low back disability impacted his ability to work in that it limited his ability to lift heavy boxes. There were no incapacitating episodes within the past 12 months and no additional functional loss due to weakness, fatigue, or incoordination. A January 2012 private treatment record from Matthew D. McLaren M.D. indicates that the Veteran continued to experience low back pain in addition to pain radiating pain into his lower right extremity as well as stiffness and limited range of motion. On October 2013 VA examination, forward flexion as to 45 degrees and after repetitive motion, forward flexion was to 60 degrees. The examiner indicated there was additional functional loss due to painful movement and incoordination and that the Veteran occasionally uses a cane for stability. There examiner found the low back disability does not affect the Veteran's ability to work. There were no incapacitating episodes in the past 12 months. The Veteran reported experiencing back pain, particularly when standing from a seated position and bending. The Board has reviewed all of the evidence of record, including of medical treatment reports referring to the Veteran's disability on appeal, but finds that none of the other information of record presents information pertinently contradicting the more detailed VA examination reports and private treatment records discussed above. With respect to the thoracolumbar flexion shown by the evidence of record, such motion is beyond that required for a 40 percent rating (forward flexion limited to 30 degrees), as thoracolumbar flexion was shown to extend to at least 90 degrees in June 2006, 70 degrees at a October 2006 VA examination, 65 degrees at a October 2007 VA examination, 60 degrees at a October 2011 VA examination, and 45 degrees at October 2013 VA examination. There is no indication that ankylosis is present. With respect to intervertebral disc syndrome (IDS), these examination reports do not reflect that the incapacitating episodes of IDS as defined by regulation accompany the Veteran's service connected lumbar spine disability. Finally, in regards to DeLuca criteria, the Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40, 4.45 would warrant a higher rating, but finds that an increased rating based on such factor is not warranted. The Board's review of the record found that the reported range of motion tests took into account limitations due to pain and other functional loss. In light of the above, a rating higher than 20 percent is not warranted under Diagnostic Code 5243. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Left Side Radiculopathy Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. However, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. A separate disability rating may be assigned for radiculopathy. It appears to the Board that applicable diagnostic criteria for a separate evaluation for sciatic nerve impairment are contained in 38 C.F.R. § 4.124a, Diagnostic Code 8620. For a compensable rating, this Code requires that there be complete or incomplete paralysis. As indicated by the Board in the August 2013 remand, the medical evidence of record included conflicting reports of lower extremity radiculopathy symptomatology. January and March 2012 private treatment records from Matthew D. McLaren, M.D. show assessments that include radiculopathy. The October 2011 VA examination did not find radiculopathy in either lower extremity despite a positive result on the right side for the straight leg raising test. The Board remanded the claim for additional development. As noted above, a December 2013 rating decision by the RO granted service connection for radiculopathy of the right lower extremity associated with the Veteran's service-connected low back disability. The issue of a separate rating for left side radiculopathy remains before the Board. A June 2006 private treatment record from Michael Luckett M.D. indicates the Veteran complained of pain radiating down his right thigh from his lower back. Muscle strength was five out of five bilaterally and straight leg raise was negative. There is no discussion of left lower extremity pain. A July 2006 private treatment record from the Monarc Clinic shows the Veteran complained for pain in his right hip and leg which was made worse by standing and walking. There was no discussion of left lower extremity pain. A November 2011 private treatment record from Great Falls Clinic indicates that the Veteran sought treatment for right leg pain. The physician noted radiculopathy on the right side. There is no discussion of pain in the lower left extremity. A January 2012 private treatment record from Matthew D. McLaren M.D. indicates that the Veteran complained of pain mostly in his right side lower extremity and pain emanates bilaterally with extension through the lateral and anterior lateral right lower extremity. The straight leg raising test was positive on the right and negative on the left and muscle strength was four out of five bilaterally. The Veteran was afforded a VA examination in October 2013. The examiner found no symptoms of radiculopathy in the left lower extremity. The examiner diagnosed mild radiculopathy in the right lower extremity and none in the left lower extremity. As noted above, the examiner reviewed the full claims file in addition to two private treatment records currently not of record. The examiner thoroughly summarized these private records in his examination report and both included notes of radiculopathy in only the right leg. Service connection has been established for a low back disability, rated at 20 percent, and for radiculopathy of the lower right extremity, rated at 10 percent. The only question now before the Board is whether there is associated left lower extremity disability so as to warrant a separate compensable rating. However, the evidence in the present case does not show that the criteria for a separate compensable rating for left lower extremity radiculopathy have been met. Private medical records and the VA medical examination for the specific purpose of evaluating radiculopathy symptoms did not result in a finding that there was any radiculopathy in the lower left extremity. Accordingly, a separate compensable rating is not warranted at this time. The Board finds that the preponderance of the evidence is against the Veteran's claim for a separate compensable rating for lower left extremity radiculopathy. As the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). Conclusion and Extraschedular Considerations In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Codes for the disabilities at issue. The reports of pain when rising from a sitting position, difficulty lifting heavy boxes, occasional use of a cane for stability, and radiating pain in his right lower extremity are all symptoms encompassed by the Veteran's current disability ratings for his low back disability and right side radiculopathy. In short, the rating criteria contemplate not only his symptoms, but the severity of each disability. For these reasons, referral for extraschedular consideration is not warranted. ORDER Entitlement to a disability rating in excess of 20 percent for traumatic arthritis of the lumbar spine is not warranted. Entitlement to a separate rating for left side lumbar spine radiculopathy is not warranted. The appeal is denied as to both issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs