Citation Nr: 1516902 Decision Date: 04/20/15 Archive Date: 04/24/15 DOCKET NO. 05-10 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for degenerative disc and joint disease of the lumbar spine. 2. Entitlement to an initial evaluation in excess of 20 percent for peripheral neuropathy of the right upper extremity. 3. Entitlement to an initial evaluation in excess of 20 percent for peripheral neuropathy of the left upper extremity. 4. Entitlement to an effective date prior to March 26, 2003, for the grant of service connection for peripheral neuropathy of the right upper extremity. 5. Entitlement to an effective date prior to March 26, 2003, for the grant of service connection for peripheral neuropathy of the left upper extremity. 6. Entitlement to a finding of total disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney-At-Law ATTORNEY FOR THE BOARD W. H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from April 1967 to February 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision by the United States Department of Veterans Affairs (VA) Wilmington, Delaware, Regional Office (RO), and a September 2012 rating decision by the Appeals Management Center (AMC) in Washington, DC. The November 2002 decision granted service connection for a lumbar spine disability, and assigned a 20 percent rating effective from December 15, 1997. The Board has previously remanded the matter for further development, in February 2007 and December 2010. In an August 2012 decision, the Board denied an evaluation in excess of 20 percent. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (CAVC or the Court), which in April 2013, on the basis of Joint Motion for an Order Partially Vacating and Remanding the Board Decision (JMR), vacated the denial and remanded the evaluation question for further appellate consideration. The CAVC order left undisturbed the Board's denials of thoracic and cervical spine disabilities, as well as the grant of service connection for upper extremity peripheral neuropathy. Additionally, the Court did not address the question of TDIU, which had been remanded to the Agency of Original Jurisdiction (AOJ) in August 2012 for further development. That claim has now been returned to the Board for adjudication. In the September 2012 decision, the RO implemented the Board's August 2012 grant of service connection for peripheral neuropathy of the left and right upper extremities, and granted initial evaluations of 20 percent for each limb, effective from March 26, 2003. The Board has reviewed the Veteran's physical claims file and the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. The issues of evaluation of peripheral neuropathy of the left and right upper extremities, as well as entitlement to TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At all times during the appellate period, degenerative disc and joint disease of the lumbar spine has been pronounced, and manifested by persistent symptoms of sciatic neuropathy, to include pain, muscle spasm, and absent ankle jerk, with little intermittent relief. CONCLUSION OF LAW The criteria for an increased 60 percent evaluation, but no higher, for degenerative disc and joint disease of the lumbar spine are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for a lumbar spine disability. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has submitted updated VA records, and has waived initial RO consideration of such. VA examinations have been afforded the Veteran, most recently in July 2013. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examiners have made all clinical findings necessary to application of the rating schedule; the Veteran does not allege, nor does the evidence show, worsening of his condition since that time. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The criteria for rating disc disease and disabilities of the spine were revised while the appeal was pending (effective September 23, 2002 and September 26, 2003, respectively). For the period prior to September 23, 2002, only the criteria under 38 C.F.R. § 4.71a (2002) are applicable. For the period of September 23, 2002, to September 26, 2003, the criteria under both 38 C.F.R. § 4.71a (2002) and (2003) are applicable. Since September 26, 2003, both prior incarnations of the criteria and the current criteria under 38 C.F.R. § 4.71a (2014) may be applied. In no case, however, may an evaluation be reduced based on a change in the applicable criteria, unless actual improvement is shown. 38 C.F.R. § 3.951(a). Under 38 C.F.R. § 4.71a, Code 5293 (2002) a 10 percent rating was assigned for mild intervertebral disc syndrome (IVDS). A 20 percent rating was in order for a moderate IVDS, with recurring attacks. A 40 percent rating required a severe IVDS with recurring attacks with intermittent relief. For pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief, a 60 percent evaluation was assigned. 38 C.F.R. § 4.71a, Code 5293 (2002). Alternatively, a lumbar spine disability could have been evaluated as lumbosacral strain under Code 5295. Slight subjective symptoms were noncompensable. Characteristic pain on motion was rated 10 percent disabling. With muscle spasm on extreme forward bending or unilateral loss of lateral spine motion in a standing position, a 20 percent evaluation was assigned. A 40 percent rating was warranted for severe strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending when standing, loss of lateral motion with arthritic changes, narrowing or irregularity of joint spaces, or some of the preceding with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Code 5295 (2002). Limitation of motion of the lumbar spine was rated under Code 5292. Slight limitation was 10 percent disabling, moderate limitation was 20 percent disabling, and severe limitation was 40 percent disabling. 38 C.F.R. § 4.71a, Code 5292 (2002). Code 5293 was revised effective September 23, 2002; Codes 5292 and 5295 were unchanged. The new Code 5293 criteria provided that IVDS should be evaluated either on the total duration of incapacitating episodes over the past 12 months, or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher rating. The revised Code 5293 provided that an evaluation of 10 percent was assigned for incapacitating episodes lasting at least one week but less than two. A 20 percent rating was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. An evaluation of 40 percent was warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. For incapacitating episodes lasting at least six weeks over the prior 12 months, a 60 percent evaluation was assigned. Note (1) to revised Code 5293 provided that "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. Note (2) provides: When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using criteria for the most appropriate neurologic diagnostic code or codes. 38 C.F.R. § 4.71a, Code 5293 (2003). The criteria for rating other disabilities of the spine were again revised effective September 26, 2003; this included a changing of Diagnostic Codes. Codes 5292, 5293, and 5295 were eliminated. Code 5237 now applies to lumbosacral strain. No separate Code is provided for limitation of motion. IVDS was renumbered as Code 5243, which provides that IVDS is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a. The actual criteria under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes are the same as were effective under Code 5293 on September 26, 2003. Under the General Rating Formula for Diseases and Injuries of the Spine, applicable under both Codes 5237 and 5243, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 10 percent evaluation is assigned 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 rating requires thoracolumbar spine forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a (2011). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. Note 2 following the General Rating Formula. 38 C.F.R. § 4.71a (2011). The Board observes the words "moderate" and "severe" are not defined in the VA rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. Although the criteria under Diagnostic Codes 5290 through 5292 (2002) were less defined that the current criteria, guidance can be obtained from the amended regulations. In adopting specific ranges of motion to define what is normal, VA stated that the ranges of motion were based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 2nd ed., (1984), which is the last edition of the Guides that measured range of motion of the spine using a goniometer. See Supplementary Information, 67 Fed. Reg. 56509, 56512 (Sept. 4, 2002). In other words, even though pre-2003 regulations did not define normal range of motion for the spine, the current definition is based on medical guidelines in existence since 1984, and the Board can consider the current ranges of motion to rating spine disabilities under the old criteria. Upon review of the evidence of record and the argument presented by the Veteran, the Board finds that the pre-2002 rating criteria for IVDS are more favorable to the Veteran that any other potentially applicable criteria. The Veteran is currently rated 20 percent disabled for a low back disability, plus 20 percent disabled for each of his lower extremities due to neuropathy. These ratings combine to 50 percent for the low back disability and its neurological manifestations. 38 C.F.R. §§ 4.25, 4.26. The Veteran has not argued that a higher evaluation is warranted for the extremities; his allegations focus on the low back. Under the criteria applicable since September 23, 2002, a higher, 40 percent evaluation would be required for the low back to increase the combined evaluation for the spine and lower extremities to 60 percent. Such is permitted only where there is a showing of limitation of flexion of the thoracolumbar spine to 30 degrees or less. 38 C.F.R. § 4.71a, Code 5243 (2014). Such is not shown here. No measured motion of the lumbar spine falls below 50 degrees of flexion. As was noted in the JMR, a July 2004 VA examiner does refer to thoracic spine motion that "started at 15 degrees of kyphosis, [and] further flexed 15 degrees to a maximum of 30 degrees...." The current criteria consider the thoracic and lumbar spine segments to be a single unit, and hence the Veteran argues entitlement to a 40 percent evaluation under current criteria. However, that same July 2004 VA examiner found that the thoracic spine disability and impairment was unrelated to the service-connected lumbar spine disability, and had developed independently. Indeed, he reported his findings completely without reference to motion of the lumbar spine. In August 2012, the Board affirmed denial of service connection for a thoracic spine disability, and the Veteran did not appeal this aspect of the decision. Accordingly, no rating may be assigned based on the limitation of the nonservice-connected thoracic spine; this is not a situation where the manifestations of two conditions cannot be distinguished. Mittleider v. West, 11 Vet. App. 181 (1998). The examiner has done so quite ably. The requirements for an evaluation in excess of the currently assigned 20 percent evaluation under the post-September 2002 criteria are not met, and the possibility of a combined evaluation in excess of the current 50 percent is therefore foreclosed; in any case, an increase would be effective only from the date of the amended regulation. The Board has therefore considered whether a higher evaluation is possible under the pre-September 2002 criteria, and finds that such is appropriate. A 60 percent rating is assigned for pronounced disc disease, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. 38 C.F.R. § 4.71a, Code 5293 (2002). Medical records from the 1980's forward document the presence of disc disease and radicular pain to at least the left buttock and leg. Ankle reflexes were measured as absent in 1995 private medical records, and lumbar paraspinal spasms were also noted. More recent records document the persistent and severe nature of the symptoms; records qualifying the complaints prior to approximately 2003 are sparse in the file, and those that are present tend to indicate episodic pain and impairment. However, the Veteran, his wife, and several friends have all reported that for the entirety of the appellate period, his low back pain has been quite severe and disabling. Even as laypersons, they are competent to describe their observations and experiences, and there is no basis in the record upon which to question the credibility of their consistent reports. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011). At worst, then, the evidence regarding the severity of the Veteran's low back disability prior to approximately 2003 must be considered in equipoise, and all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3. The lumbar spine degenerative disc and joint disease is found to warrant a 60 percent evaluation throughout the appellate period. At all relevant times, low back pain, radicular pain, and neurological manifestations such as absent reflexes have been present, along with competent and credible evidence indicating little relief. No higher evaluation for the low back disability is possible under either the old or new rating criteria. As was discussed above, the measured range of motion of the service-connected back segments does not fall within that required for an evaluation greater than the currently assigned 20 percent, and there is no finding of ankylosis or vertebral fracture with cord involvement which would otherwise warrant an evaluation of the 60 percent rating awarded here. 38 C.F.R. § 4.71a, Codes 5285, 5286, 5289 (2002); 38 C.F.R. § 4.71a, Code 5243. The Board would note that it has considered whether an additional, separate rating for limitation of motion of the lumbar spine is possible under the pre-September 2002 criteria, but has determined that such is not appropriate. While the Veteran does have limitation of motion that would be compensable under 38 C.F.R. § 4.71a, Code 5292 (2002), as slight or even moderate, such disability is based at least in part on pain, weakness, fatigability, and lack of endurance which are also the hallmarks of the IVDS disability. In this case, it is not possible to separate orthopedic and neurological impacts of the current disability; the overlap in affected function is too great. Rating under Codes 5292 and 5293 (2002) simultaneously would therefore be prohibited pyramiding. 38 C.F.R. § 4.14. Additionally, the Board notes that Code 5293 (2002) includes the neurological manifestations of the low back condition currently assigned separate ratings as peripheral neuropathies of the lower extremities. Continued application of Code 8620 for sciatic nerve impairment as related to the low back is therefore prohibited as pyramiding. 38 C.F.R. § 4.14. The grant of an increased 60 percent rating under Code 5293 (2002) from December 1997 requires immediate discontinuance of ratings under Code 8620; in calculating any retroactive payments, that compensation which the Veteran has already received under those Codes must be accounted for. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular 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, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred 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. The criteria applied here fully account for all of the Veteran's complaints of pain, limited function, and neurological impairments. As the schedule is adequate, extraschedular evaluation is not appropriate, and no further discussion is required. Thun v. Peake, 22 Vet. App. 111 (2008) (CONTINUED ON NEXT PAGE) ORDER An increased 60 percent evaluation for degenerative disc and joint disease of the lumbar spine is granted, subject to the statutes and regulations regarding payment of compensation benefits. REMAND Upper Extremities In a September 2012 rating decision, service connection for peripheral neuropathy of the left and right upper extremities, due to herbicide exposure. A 20 percent evaluation was assigned for each limb, effective from March 26, 2003. In timely September 2103 correspondence, the Veteran, through his representative, filed a notice of disagreement (NOD) with both the assigned effective dates and the evaluations. It does not appear that any further action has been taken with regard to these matters. When an NOD has been filed with regard to an issue, and a statement of the case (SOC) has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Thus, a remand is required for issuance of an SOC and to provide the Veteran the opportunity to perfect an appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26; See Manlincon v. West, 12 Vet. App. 238 (1999). TDIU A finding of entitlement to TDIU is dependent upon consideration of the impact of service-connected disabilities on a Veteran's ability to secure and follow substantially gainful employment. There currently remain open and pending several appellate matters which have bearing on that question. The Board has granted a 60 percent evaluation for a low back disability, which the AOJ must implement. Further, the Veteran alleges entitlement to yet higher evaluations for upper extremity neuropathies, as well as entitlement to an earlier date of service connection. Proper evaluation of the disabilities is vital to considering the impact on occupational functioning. Therefore, the claim for TDIU may not be adjudicated until the inextricably intertwined appeals have been addressed. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the case is REMANDED for the following action: 1. Issue an SOC regarding the issues of entitlement to increased initial evaluations for left and right upper extremity peripheral neuropathies, as well as entitlement to earlier effective dates of service connection for such. Advise the Veteran and his representative of the procedural requirements to continue an appeal of each issue. If a substantive appeal is timely filed with regard to all or any of these matters, the perfected issue should be certified to the Board. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters 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 2014). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs