Citation Nr: 1603836	
Decision Date: 02/03/16    Archive Date: 02/11/16

DOCKET NO.  12-26 331	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative disc disease of the lumbosacral spine.

2.  Entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the right lower extremity.

3.  Entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity.


REPRESENTATION

Veteran represented by:	Colorado Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Meawad, Counsel


INTRODUCTION

The Veteran served on active duty from March 1968 to March 1970. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions issued in 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In July 2014, the Veteran was afforded a videoconference hearing before the undersigned.

In January 2015, the Board remanded the case for further development.


FINDINGS OF FACT

1.  The Veteran's degenerative disc disease of the lumbosacral spine has been productive of, at worst, limitation of motion of 75 degrees of forward flexion of the thoracolumbar spine with pain and 150 degrees combined range of motion of the thoracolumbar spine.  Ankylosis and incapacitating episodes of intervertebral disc syndrome requiring bed rest for at least 2 weeks during the past 12 months have not been shown.

2.  The Veteran does not have peripheral neuropathy of the right lower extremity that is productive of moderate incomplete paralysis of the sciatic nerve.

3.  The Veteran does not have peripheral neuropathy of the left lower extremity that is productive of moderate incomplete paralysis of the sciatic nerve.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating in excess of 10 percent for degenerative disc disease of the lumbosacral spine have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5243-5242 (2015).

2.  The criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity degenerative disc disease of the lumbosacral spine have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2015).

3.  The criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity degenerative disc disease of the lumbosacral spine have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).

A standard January 2011 letter satisfied the duty to notify provisions.

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

The Veteran's service treatment and personnel records have been obtained.  Post-service VA treatment records have also been obtained.

The Veteran was provided VA medical examinations in April 2011, July 2012, and May 2015.  The examinations in the aggregate are sufficient evidence for deciding the claims.  The reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain a reasoned explanation.  Thus, VA's duty to assist has been met.

II.  Increased Rating

Schedular Rating

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the veteran's favor.  38 C.F.R. § 4.3.  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 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).

The Veteran contends that he is entitled to a higher rating for his service-connected lumbar spine disability.  

The Veteran was granted service connection for advanced degenerative disc disease of the lumbosacral spine in the August 2011 rating decision on appeal, which assigned a 10 percent disability rating, effective January 24, 2011, under Diagnostic Codes 5243-5242.  38 C.F.R. § 4.71a.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

Back disabilities are evaluated under Diagnostic Codes 5235 to 5243 using the general rating formula unless evaluating intervertebral disc syndrome based on incapacitating episodes.

Under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating of 10 percent are forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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.  The criteria for a rating of 20 percent are 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.  The criteria for a 40 percent rating are forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.  The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine.  The criteria for a 100 percent rating are unfavorable ankylosis of the entire spine.  

Any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code.  

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, incapacitating episodes having a total duration of at least one week, but less than two weeks during 12 months are rated at 10 percent.  Incapacitating episodes having a total duration of at least two weeks, but less than four weeks during 12 months are rated at 20 percent.  Incapacitating episodes having a total duration of at least four weeks, but less than six weeks during 12 months are rated at 40 percent.  Incapacitating episodes having a total duration of at least six weeks during 12 months are rated at 60 percent.  An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician.  Note 1, following the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 

During the April 2011 VA examination, the Veteran complained of having radicular pain down the right lower extremity following the S1 dermatome.  The Veteran was diagnosed as having advanced degenerative joint disease of the lumbosacral spine and bilateral peripheral neuropathies to the lower extremities.  The Veteran's gait was normal and spinal curvatures were normal.  His muscle spasm, localized tenderness and guarding were not severe enough to cause abnormal gait or spinal contour.  Range of motion testing was normal except for 20 degrees left lateral flexion.  The Veteran's reflexes were normal, sensory was decreased with peripheral nerves on right lower extremity of the first 4 toes, and sensory was decreased with peripheral nerves on left lower extremity of the first 3 toes.  In an August 2011 addendum, the examiner opined that the Veteran's baseline level of disability for his back condition prior to aggravation was at least as likely as not near normal.

In July 2012, the Veteran was provided another VA examination.  He complained of having low back pain, which was worse in the morning, with pain radiating into his right buttocks and down the right leg to the foot, which is consistent with nerve distribution of the S1 nerve root.  He denied having leg weakness or bowel and bladder dysfunction.  He reported playing 18 holes of golf about once a week.  Flexion was to 75 degrees with pain at 75 degrees.  His extension was to 30 or greater and right and left lateral rotation was to 30 degrees or greater, with no objective evidence of painful motion.  Right flexion was to 20 degrees and left lateral flexion was to 15 degrees; all with end of range pain.  Range of motion did not objectively change following repetition although it was indicated that repetitive motion caused less movement than normal and pain on movement.  The Veteran did not have localized tenderness, pain to palpation, guarding or muscle spasms.  Muscle and sensory testing was normal.  Reflexes were abnormal showing 1+ for the right and left knees and left ankle and 0 for the right ankle.  The Veteran was diagnosed as having sciatica with mild intermittent pain and paresthesias or dysesthesias and moderate numbness of the right lower extremity.  The Veteran did not have intervertebral disc syndrome (IVDS).

In a May 2015 VA examination, the Veteran was diagnosed as having lumbar spondylosis and degenerative disc disease without clinical evidence of radiculopathy and right sacroiliac joint dysfunction in the face of a leg length discrepancy from a childhood compound fracture.  The examiner found that the sacroiliac joint radiated pain much like a radiculopathy, but was not a radiculopathy, and his sacroiliac joint accounted for his intermittent symptoms down his leg.  The examiner opined that the thoracic levoscoliosis at 35 degrees was likely related to the leg length discrepancy from childhood.  Muscle strength, reflex, sensory, and straight leg testing were all normal and no radiculopathy, ankylosis, neurological abnormalities, or IVDS was found on examination.  Range of motion testing showed forward flexion of 5 to 85 degrees, extension of 0 to 5 degrees, right lateral flexion of 0 to 15 degrees, left lateral flexion of 0 to 15 degrees, right lateral rotation of 0 to 15 degrees, and left lateral rotation of 0 to 15 degrees.  Pain was noted on examination with extension, but it did not result in or cause functional loss.  There was also no additional loss of function or range of motion after three repetitions.  The Veteran had guarding and localized tenderness of the thoracolumbar spine not resulting in abnormal gait or spinal contour.

In August 2015, the Veteran received private treatment for his back disability and complained of having numbness or tingling and burning.  He denied weakness or paralysis and stated that he had very little leg pain and most of his problem was back pain.  Motor strength, sensation and reflexes were normal in all four extremities and there was no instability.  There were no changes shown in X-rays.  On the MRI, he had severe disc degeneration throughout the whole lumbar spine.  There was very minimal, if any, foraminal stenosis.

The Veteran was assigned a disability rating of 10 percent for his lumbar spine disability.  In order for a higher than 10 percent rating to be warranted, the Veteran must have 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.  During the entire appellate period, at worst, the Veteran's forward flexion was to 75 degrees with pain at 75 degrees and his combined range of motion was to 150 degrees.  During the July 2012 VA examination, range of motion did not objectively change following repetition although it was indicated that repetitive motion caused less movement than normal and pain on movement.  Also, the May 2015 VA examiner found that there was no additional loss of function or range of motion after three repetitions.  There was no medical evidence that his pain affected his range of motion and there has been no medical evidence of abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  The criteria for a next higher rating of 20 percent are not shown at any point during the appellate period.  This is so even with consideration of painful motion and other factors.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion). 

The evidence also does not demonstrate that the Veteran had any incapacitating episodes requiring bed rest and treatment by a physician for the requisite duration at any time during the appeal period.  In order to receive a higher rating for incapacitating episodes, the Veteran must have a total duration of at least two weeks or more, that requires bed rest prescribed by a physician and treatment by a physician.  Throughout the appellate period, the medical evidence shows that the Veteran did not have IVDS.  During the April 2011 VA examination, the Veteran's muscle spasm, localized tenderness and guarding were not severe enough to cause abnormal gait or spinal contour.  Subsequent medical evidence did not find muscle spasms or tenderness.  Although the Veteran was diagnosed as having degenerative disc disease of the lumbar spine, the medical evidence does not show that the Veteran had any incapacitating episodes prescribed by a doctor.  In fact, the Veteran did not complain of needing bed rest and reported during the July 2012 VA examination that he played 18 holes of golf about once a week.  The medical evidence does not show bed rest prescribed by a physician and treatment by a physician for the requisite duration.  Therefore the criteria for a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes have not been met.  

In sum, the preponderance of the evidence is against a rating higher than 10 percent for degenerative disc disease of the lumbosacral spine.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

In accordance to Note 1 under the General Rating Formula for Diseases and Injuries of the Spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code.  The Veteran's peripheral neuropathy of the right lower extremity is currently rated 10 percent disabling and his peripheral neuropathy of the left lower extremity is currently rated 10 percent disabling.  The lower extremities are rated under Diagnostic Code 8520.  38 C.F.R. § 4.124a.  

Diagnostic Code 8520 rates incomplete or complete paralysis of the sciatic nerve.  Mild incomplete paralysis warrants a 10 percent disability rating; moderate incomplete paralysis warrants a 20 percent disability rating; moderately severe incomplete paralysis warrants a 40 percent disability rating; and, severe incomplete paralysis with marked muscular atrophy warrants a 60 percent disability rating.  

The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor.  38 C.F.R. § 4.124a.

The use of terminology such as "mild," "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  38 C.F.R. §§ 4.2, 4.6.

Review of the medical evidence shows that although the Veteran was found to have bilateral peripheral neuropathies to the lower extremities during the April 2011 VA examination and sciatica with mild intermittent pain and paresthesias/dysesthesias and moderate numbness of the right lower extremity during the July 2012 VA examination, the May 2015 VA examiner found that the Veteran did not suffer from radiculopathy.  The May 2015 VA examination report clearly found that there was no clinical evidence of radiculopathy explaining that right sacroiliac joint dysfunction caused by a leg length discrepancy from a childhood compound fracture caused radiating pain much like a radiculopathy, but was not radiculopathy, and his sacroiliac joint accounted for his intermittent symptoms down his leg.  Further, the Veteran stated during private treatment in August 2015 that he did not have pain in his legs and there was no indication that he had any type of radicular pain during that treatment.  Although the Veteran was initially found to have neurological disabilities of the lower extremities that were associated with his service-connected back disability, which were separately rated, the subsequent medical evidence demonstrates that the Veteran does not in fact have a neurological disability of the lower extremity.  In any event, the evidence does not show that the Veteran has symptoms of the lower extremities that more closely approximate moderate incomplete paralysis of the sciatic nerve.  Therefore, higher disability ratings for the right and left lower extremities are not warranted.

In sum, the preponderance of the evidence is against a rating higher than 10 percent for peripheral neuropathy of the right lower extremity and 10 percent for peripheral neuropathy of the left lower extremity.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

The Board finds that the Veteran's subjective complaints are outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with consideration of the lay complaints.  The treating physicians and the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints.  For these reasons, greater evidentiary weight is placed on the physical examination findings than the Veteran's lay statements with respect to the extent to which the Veteran is entitled to a higher rating.


Extraschedular Consideration

The Board has considered whether the Veteran's claim warrants referral for consideration of an extraschedular rating.  An extraschedular rating is warranted under 38 C.F.R. § 3.321(b)(1) if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  

The Board finds that the claimant's disability picture is adequately contemplated by the rating schedule.  The Veteran has not claimed nor does the evidence show that his service-connected disabilities of the back and lower extremities caused marked interference with his employment or required hospitalization.  The Veteran's service-connected back disability is primarily manifested by pain and limitation of motion, and his service-connected peripheral neuropathy of the right and left lower extremities is primarily manifested by radiating pain.  These signs and symptoms, and their resulting impairment, are expressly contemplated by the rating schedule.  The diagnostic codes in the rating schedule corresponding to disabilities of the back and the lower extremities provide disability ratings on the basis of limitation of motion and paralysis of the sciatic nerve.  See 38 C.F.R. § 4.71a, Diagnostic Code 5242; 38 C.F.R. § 4.124a, Diagnostic Code 8524.  For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance.  38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet.App. 32, 37 (2011).  For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing.  38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37.  

In summary, as the Veteran's disability picture is contemplated by the rating schedule, the schedular criteria are adequate and referral for consideration of an extraschedular rating is not necessary.  See Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1).  Furthermore, the disability picture is not so exceptional to warrant referral even when the disabilities are considered in the aggregate.  The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  However, in this case, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.  


Total Disability Rating Due To Individual Unemployability (TDIU)

A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation.  There must be cogent evidence of unemployability in the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)).  In the instant case, the holding of Rice is inapplicable since the evidence of record clearly shows that the Veteran has retired due to eligibility by age or duration of work; thus, there is no cogent evidence of unemployability caused by his service-connected disabilities and further consideration of entitlement to increased compensation based on TDIU is not necessary.


ORDER

Entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative disc disease of the lumbosacral spine is denied.

Entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the right lower extremity is denied.

Entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity is denied.




____________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs