Citation Nr: 1512567 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 08-39 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating higher than 20 percent for degenerative joint disease of the lumbar spine. 2. Entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy prior to January 20, 2012, and a rating higher than 20 percent since. 3. Entitlement to an initial rating higher than 10 percent for left lower extremity radiculopathy prior to January 20, 2012, and a rating higher than 20 percent since. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran had active military service from May 1960 to February 1964. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which confirmed and continued a previously-assigned 20 percent rating for the degenerative joint disease (DJD), i.e., arthritis, of the Veteran's lumbar spine. In December 2011, the Board remanded this claim for further development and consideration. And in June 2012, on remand, the Appeals Management Center (AMC) awarded separate 10 percent ratings for radiculopathy of each lower extremity prior to January 20, 2012, and 20 percent ratings thereafter. The Veteran since has continued to appeal for even higher ratings, both for the DJD affecting the lumbar segment of his spine and the bilateral lower extremity radiculopathy. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible ratings for disabilities, absent express indication otherwise, so receipt of a higher rating [or, here, separate additional ratings], but less than the maximum possible rating, does not abrogate the pending appeal). In a more recent June 2013 remand, the Board noted that, while the AMC had closed the appeal as concerning these separate ratings on the basis they were full grants of service-connection claims, these ratings did, in fact, remain on appeal. See June 2013 Board Decision at 2. Nonetheless, the appeal was again remanded for still additional development, including obtaining a new VA examination reassessing the severity of these service-connected disabilities and to allow the Veteran time to identify or submit any additional treatment records pertinent to his claims. This appeal has been processed entirely electronically using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's claims should consider these electronic records. This appeal also has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2014). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Prior to October 15, 2009, forward flexion of the Veteran's lumbar spine was to less than 30 degrees, but since it has been to at least 40 degrees, including when considering his pain and following repetitive testing, therefore prolonged use. 2. Prior to October 15, 2009, the bilateral lower extremity radiculopathy resulted in only relatively mild incomplete paralysis, but since it has been moderate, though not moderately-severe. CONCLUSIONS OF LAW 1. The criteria are met for a higher 40 percent rating, but no greater, for the DJD of the lumbar spine prior to October 15, 2009, but since the criteria have not been met for a rating higher than 20 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5237 (2014). 2. The criteria are not met for initial ratings higher than 10 percent for the bilateral (left and right) lower extremity radiculopathy prior to October 15, 2009. From that date onwards, however, the criteria are met for higher 20 percent ratings, though no greater ratings. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8520 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence he is expected to provide versus that VA will obtain for him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and information in a September 2007 letter, prior to the initial adjudication of his claims in the February 2008 decision at issue in this appeal, so in the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the processing and adjudication of his claims, certainly none that he and his representative consider unduly prejudicial - meaning necessarily outcome determinative of his claims. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records and providing an examination or medical opinion when necessary to make a decision on the claim. This additional obligation does not apply if there is no reasonable possibility the assistance would aid in substantiating the claim. To this end, the Veteran's service treatment records (STRs), VA treatment records, and identified post-service private treatment records have been obtained and associated with his claims file for consideration. Notably, subsequent to the June 2013 remand, the Veteran identified additional VA treatment records from VA Medical Centers (VAMCs) in St. Louis Missouri, and Columbia, Missouri, which were pertinent to his claims. However, the Veteran specified that these records were for treatment from the 1970's and 1980's, respectively, which is many years prior to the period on appeal. Because the pertinent question in this case is the severity of the Veteran's disabilities during the appeal period, these records are not relevant to the claims. Therefore, to the extent that the St. Louis VAMC records from the 1970's were not obtained, further attempts to obtain these records are not necessary. In addition, the Veteran identified private treatment records from Cox Health Systems for the year 2006 as being pertinent to his claim. However, this provided indicated in correspondence dated September 2013 and October 2013 that no such records were available. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the service-connected disabilities on appeal. Therefore, VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of all the above development of the Veteran's claims, there has been compliance, certainly substantial compliance, with the Board's prior remand directives, in turn allowing the Board to proceed with adjudication of these claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2014). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2014). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The U.S. Court of Appeals for Veterans Claims (Court/CAVC) has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The U.S. Court of Appeals for Veterans Claims (Court/CAVC) has held that VA adjudicators must analyze the evidence of pain, weakened movement, premature or excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. However, when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id. at 37. A. Lumbar Spine The Veteran's lumbar spine disability is currently assigned a 20 percent rating under DC 5237, which is part of the General Rating Formula for Disease and Injuries of the Spine. 38 C.F.R. § 4.71a. Under this formula, a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is 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 assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. Note (5) to the rating formula specifies that unfavorable ankylosis is defined, in pertinent part, as "a condition in which the entire thoracolumbar spine is fixed in flexion or extension." Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Ankylosis also has been defined in precedent cases as stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999). See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. In this case, a higher 40 percent rating is warranted prior to October 15, 2009. During an October 2007 VA examination, the Veteran was unable to complete range of motion testing due to severe back pain. The examiner noted that the Veteran attempted forward flexion, but was unable to flex more than a few degrees before stopping suddenly with complaints of pain. Similar complaints resulted from the Veteran's attempts at left and right lateral flexion, and range of motion testing was discontinued. Private treatment records dated April 2008 show the Veteran was able to flex forward such that his fingertips reached within 6 inches past his knees. However, specific degree measurements were not recorded. Given these findings, a 40 percent rating is warranted. The evidence from this period, particularly the results of the October 2007 VA examination, shows the Veteran was unable to flex forward more than 30 degrees. Although range of motion testing was not completed during that VA examination, his inability to do this testing reflects an overall level of impairment consistent with this higher rating, which contemplates limitation of motion of the lumbar spine up to and including favorable ankylosis (i.e., no motion). However, an even higher 50 percent rating is not warranted, as unfavorable ankylosis of the lumbar spine was not demonstrated. From October 15, 2009, a rating higher than the currently assigned 20 percent rating is not warranted. The VA examination conducted on this date reflects forward flexion of 50 degrees in the lumbar spine, limited to 40 degrees following repetitive testing. An additional examination in January 2012 documented flexion of 60 degrees, even when accounting for the onset of pain and repetitive testing. Similarly, an August 2013 VA examination noted forward flexion of 60 degrees, with the onset of pain at 40 degrees. Repetitive testing yielded flexion of 60 degrees. These findings do not satisfy the schedular criteria for a higher 40 percent rating, as flexion of 30 degrees or less has not been shown, even when accounting for pain and repetitive testing. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. The Veteran is already rated for radiculopathy of the lower extremities associated with his lumbar spine disability. These conditions will be discussed later in the decision. The record is otherwise negative for any bladder or bowel impairment associated with the Veteran's lumbar spine disability. Indeed, the record contains several instances in which the Veteran denied such symptoms, or they were otherwise specifically noted to not be present. See October 2007 VA Examination; March 2008 Private Treatment Records; October 2009 Private Treatment Records; January 2012 VA examination; August 2013 VA examination. The Board also has considered whether a higher rating is warranted under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71, DC 5243. Incapacitating episodes are defined as periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). In this case, notwithstanding the reported history of incapacitating episodes noted by a January 2012 VA examiner, the available VA and private treatment records do not document any bed rest actually prescribed by a physician for treatment of the Veteran's lumbar spine disability. Therefore, by definition, he has not really had any incapacitating episodes, so a rating under DC 5243 would be inappropriate. B. Lower Extremity Radiculopathy The Veteran's left lower extremity and right lower extremity radiculopathy conditions are each rated under DC 8520 at 10 percent prior to January 20, 2012, and 20 percent thereafter. DC 8520 provides ratings for paralysis, neuritis, and neuralgia of the sciatic nerve, respectively. Disability ratings of 10, 20, 40, and 60 are warranted, respectively, for mild, moderate, moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. See "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id. The words "mild," "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. 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 (2014). It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2014). Prior to October 15, 2009, a rating higher than 10 percent is not warranted for either right or left lower extremity radiculopathy is not warranted. During an October 2007 VA examination, deep tendon reflexes were 2+ (normal), and sensation was intact. Private treatment records dated March 2008 also reflect normal reflexes and sensation bilaterally, except for numbness around the area of the Veteran's right total knee arthroplasty. Strength was 5/5. In April 2008, the Veteran denied any sensory changes. Strength was again 5/5, except for right hip flexion, which measured 4-/5. Records dated May 2008 reflect normal reflexes and sensation, and the treating physician noted strength to be "adequate." Overall, this evidence reflects normal strength, reflexes, and sensation, except minor deficiencies in right knee sensation and right hip flexion recorded at separate points during the period in question. These findings correspond to only "mild" incomplete paralysis at best under DC 8520. From October 15, 2009, however, a higher 20 percent rating is appropriate for each lower extremity. A VA examination performed on that date noted that strength was 4/5, sensation was 1/2 (diminished) for all types of stimuli, and reflexes were 1+ (diminished) in the bilateral lower extremities. The Veteran later underwent two VA examinations in January 2012. Both recorded normal strength and sensation bilaterally. One examination noted right reflexes and left ankle reflex as 1+, while the other noted right reflexes to be absent and left reflexes to be normal. Additional records from June 2012 also show normal strength and sensation. In June 2013, reflexes were measured as normal, and normal neuromuscular findings were recorded in July 2013. An August 2013 VA examination noted normal strength and knee reflexes bilaterally. The bilateral ankle reflexes were diminished. Left sensation was normal, while right sensation was decreased in the area of the lower leg and ankle. The examiner noted that the Veteran had "moderate" intermittent pain and "mild" numbness bilaterally. The overall severity of the Veteran's bilateral radiculopathy was "mild." The most severe symptoms from this period were those recorded during the October 2009 VA examination, and reflect some impairment bilaterally in all three tested areas of strength, sensation, and reflexes. This corresponds to "moderate" level of incomplete paralysis. However, "moderately severe" incomplete paralysis is not shown, as none of the tested areas demonstrated more than minor impairment. In other words, while reflexes and sensation were diminished, neither was fully absent. Similarly, strength was noted to be impaired, but was still 4/5. Therefore, a higher 40 percent rating is not warranted for either lower extremity. C. Extra-schedular Consideration In evaluating the Veteran's claims for higher ratings, the Board also has considered whether he is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). As part of the evaluation for an extra-schedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit-of-the-doubt rule applies to determinations of whether a symptom should be attributed to a service-connected condition. To this end, the Board has attributed all potentially service-connected symptoms to the Veteran's service-connected conditions in considering whether he is entitled to an extra-schedular rating. According to the regulation, an extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). According to Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's low back and lower extremity radiculopathy disabilities with the established criteria found in the Rating Schedule for these disabilities shows that the rating criteria reasonably describes his disability level and symptomatology, as discussed above. The Rating Schedule specifically contemplates pain, limitation of motion, and abnormal gait resulting from the Veteran's lumbar spine condition, as well as pain, weakness, and numbness associated with his lower extremity radiculopathy. There is no indication that his conditions result in any symptoms that fall so far outside the purview of the Rating Schedule as to render it inadequate. ORDER A higher 40 percent rating for the DJD of the lumbar spine is granted prior to October 15, 2009; but from that date onwards, a rating higher than 20 percent is denied. An initial rating higher than 10 percent for the right lower extremity radiculopathy is denied prior to October 15, 2009; from that date, a 20 percent rating is granted (so not just since January 20, 2012, therefore as of an earlier effective date). An initial rating higher than 10 percent for the left lower extremity radiculopathy is denied prior to October 15, 2009; from that date, a 20 percent rating is granted (so not just since January 20, 2012, therefore as of an earlier effective date). ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs