Citation Nr: 1609800 Decision Date: 03/10/16 Archive Date: 03/22/16 DOCKET NO. 11-09 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for degenerative disc disease lumbar spine and lumbosacral strain. 2. Entitlement to an initial rating in excess of 10 percent for left lower extremity sciatic radiculopathy. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Bordewyk, Counsel INTRODUCTION The Veteran served on active duty from February 2001 to November 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which granted an increased rating of 20 percent for lumbosacral strain and degenerative disc disease lumbar spine (herein lumbar disability) and granted a separate rating of 10 percent for left leg nerve condition, each effective September 23, 2008. The issue of left leg nerve condition has been recharacterized as left lower extremity sciatic radiculopathy to reflect the current diagnosis and the disability currently service-connected. The claim was remanded in December 2013 for additional development. At that time, the Board determined that the issue of entitlement to TDIU was encompassed in the current appeal and the issue was remanded. However, in a May 2014 statement, the Veteran stated that he was not ready to apply to TDIU at this time. Therefore, the Board has determined that the issue is not currently on appeal and will not be considered herein. The Board notes that in a March 2015 Report of Contact, the Veteran expressed his intention to withdraw the current claim on appeal over the phone to a VA employee. However, the regulations provide that a motion to withdraw a claim must be in writing. See 38 C.F.R. § 20.204 (b)(2015). As the Veteran did not submit a motion to withdraw the claim in writing, the Board must continue with the adjudication of the claim. FINDINGS OF FACT 1. The degenerative disc disease lumbar spine and lumbosacral strain is manifested predominately by forward flexion to 45 degrees at worst, with pain at the end and without ankylosis of the spine or doctor prescribed bedrest for incapacitating episodes. 2. The left lower extremity radiculopathy is manifested at worst by mild, incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 20 percent for degenerative disc disease lumbar spine and lumbosacral strain are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R §§ 4.7, 4.71a, Diagnostic Codes 5242, 5243 (2015). 2. The criteria for an initial rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159(b) (2015). The duty to notify was satisfied prior to the initial RO decision by way of a letter sent to the Veteran in June 2009 that informed him of his duty and VA's duty for obtaining evidence as well as the evidence needed to substantiate his claim for an increased rating. Pelegrini v. Principi, 18 Vet. App. 112 (2004). He was also notified of all elements of the service connection, including the disability-rating and effective-date elements of the claim. VA also has a duty to assist the Veteran in the development of a claim, which includes assisting the Veteran in the procurement of pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Complete VA and private treatment records have been obtained and no other outstanding treatment records have been identified by the Veteran. He was provided with a VA examination in July 2009, April 2014, and July 2014 to assess the current severity of his service-connected lumbar and left lower extremity disabilities. The Board finds that the medical opinion evidence is adequate as it is based on physical examination and review of the Veteran's statements and contains clear findings. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The issue on appeal was previously before the Board in December 2013, when it was remanded for additional development. In accordance with the remand instructions, the Veteran was provided with a copy of his service treatment records, he was asked to identify and authorize VA to obtain all outstanding records of private treatment in April 2014, all outstanding VA treatment records were obtained and associated with the claims file, a VA examination was provided in April and July 2014, and a supplemental statement of the case was issued in December 2014. Since the record reflects compliance with the prior remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2015). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7 (2015). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2015). Use of terminology such as "severe" by VA examiners and others, although 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 (2015). 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. See 38 C.F.R. § 4.7 (2015). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lumbar Disability The Veteran submitted a claim for an increased rating in September 2008. His degenerative disc disease lumbar spine and lumbosacral strain has been evaluated as 20 percent disabling under Diagnostic Codes 5237. Under the formula for rating spine disorders (Diagnostic Codes 5235-5242), a 40 percent evaluation is provided where forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, while a 100 percent evaluation contemplates unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula of Disease and Injuries of the Spine (2015). Unfavorable ankylosis is a condition where the entire thoracolumbar spine is held in flexion or extension and the condition 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. 38 C.F.R. § 4.71a, General Rating Formula of Disease and Injuries of the Spine, Note (5) (2015). Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, a 40 percent evaluation is assigned in cases of incapacitating episodes of intervertebral disc syndrome having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent evaluation contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. 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. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. These criteria are an alternative to rating on the basis of orthopedic and neurologic manifestations under the General Formula for Diseases and Injuries of the Spine, and a rating is assigned on the basis of whichever method results in the higher rating. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2) (2015). In other words, under these criteria, the Veteran is potentially entitled to an increased evaluation on three bases: forward flexion of the thoracolumbar spine limited to 30 degrees or less (bearing in mind the applicability of DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995) and 38 C.F.R. §§ 4.40 and 4.45); ankylosis, either favorable or unfavorable, of the entire thoracolumbar spine; or doctor prescribed bedrest for incapacitating episodes having a total duration of at least four weeks during the past twelve months. Other symptoms, such as limitation of motions other than flexion, muscle spasm, and abnormal spinal contour, are fully contemplated by the assigned 20 percent evaluation and do not warrant further discussion with regard to the question of whether an increased evaluation is warranted. In making these determinations, the Board has considered the findings from the July 2009, April 2014, and July 2014 VA spine examinations, as well VA treatment records and the Veteran's statements. As to forward flexion, the most severe limitation of was found at the July 2009 VA examination, where the Veteran was found to have forward flexion to 45 degrees, at which point, the Veteran declined to bend any further due to pain. The 2014 VA examiners recorded forward flexion possible to 50 degrees with pain at the end. Each examiner noted that the range of forward flexion did not change following repetitive testing. While each VA examiner noted the Veteran's reports of flare-ups with increased pain, there is no evidence of flare-ups or other functional factors so severe as to consistently limit forward flexion to 30 degrees or less. In July 2009, the Veteran reported that after three to four hours of sitting, he experienced a flare up that lasted 45 minutes and was relieved by stretching and resting before going back to work. He reported that he has not been restricted by a doctor but his symptoms limited his ability to bend, lift, and drive for long periods of time without stretching. In April 2014, the Veteran reported flare-ups of back pain monthly, lasting for about four days. He stated that he "just starts ibuprofen and keeps on going to school." The examiner stated that pain could significantly limit lumbar functioning during flare-ups or after repetitive use, but it would be mere speculation to express such functional limitations in terms of degrees of range of motion. In July 2014, the Veteran reported that he no longer used pain medication for his lumbar disability symptoms. He reported flare-ups that occur about three times a month, during which he is unable to manage his usual household chores due to pain. While he reported a 50 percent loss of range of motion on all planes with flare-ups, again, this only happened three times per month and the examiner stated that this report could not be confirmed without speculation given the short length of the examination. The examiner noted that there was no loss of strength of the lower extremity, no atrophy or trophic changes are seen, normal gait is maintained, and the Veteran was observed to have no difficulty getting in and out of a chair, or accessing the exam table. In terms of dressing and undressing, the examiner stated that the Veteran was able to accomplish removal of lower extremity clothing, including trousers, shoes, and socks within a normal time frame without need for assistance. Finally, the Board notes that in a March 2015 statement, the Veteran reported that the lumbar disability no longer caused him pain or bothered him. While the 2014 examiner noted that pain during flare-ups or repetitive use could result in significant functional limitations and while the Veteran's reports of a 50 percent reduction in range of motion during flare-ups, which would hypothetically mean that the Veteran's forward flexion would be limited to less than 30 degrees during a flare-up, the flare-ups were reportedly infrequent, either once per month lasting for four days or just three times per month. The Board concludes that even if the Veteran experiences these flare-ups, his disability level does not more closely approximate the next highest disability rating, which would require forward flexion to more consistently be limited to 30 degrees or less. Limitation of forward flexion to 30 degrees or less just a few times per month at most is not considered by the Board to be predominate enough to be representative of the Veteran's current disability level. In short, the evidence does not reflect that the Veteran's functional loss due to pain, flare-ups, etc. are tantamount to disability equating to loss of flexion to 30 degrees, which is the limitation required for the next higher (40 percent) rating. Furthermore, on VA examination, the Veteran has demonstrated an ability to move the spine in all directions. The evidence shows no indication whatsoever that the spine has been fixed in extension or flexion at any time during the appeal period, thus demonstrating the absence of ankylosis. In addition, the 2014 VA examiners actually noted that there was no ankylosis upon examination. Therefore, an increased rating under Diagnostic Code 5242 is not warranted. There have also been no periods of doctor-prescribed bed rest (e.g., incapacitating episodes) at all according to the record, let alone episodes having a total duration of at least four weeks during the past 12 months resulting from the service-connected spine disability. The Veteran specifically reported the lack of incapacitating episodes during the last 12 months during the 2014 VA examinations. Therefore, the Veteran is not entitlement to an increased rating for incapacitating episodes under Diagnostic Code 5243. Given the absence of such findings during the entire pendency of this appeal, there is no basis for a "staged" rating in this case because the severity has been essentially consistent in terms of the applicable diagnostic criteria. Overall, there exists no basis under the schedular criteria for a rating in excess of 20 percent for service-connected lumbar disability, and the Veteran's claim for that benefit must be denied. 38 C.F.R. §§ 4.3, 4.7. Left Lower Extremity Radiculopathy Because the criteria for rating diseases of the spine require that any neurologic disabilities associated with the spine disability be rated separately, consideration must also be given to the Veteran's neurologic symptoms due to the service-connected lumbar disability. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2015). Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. The Veteran's left lower extremity radiculopathy has been rated as 10 percent disabling under Diagnostic Code 8520, which provides the rating criteria for paralysis of the sciatic nerve. Incomplete paralysis of the sciatic nerve warrants a 10 percent evaluation if it is mild, a 20 percent evaluation if it is moderate, a 40 percent evaluation if it is moderately severe, and, a 60 percent evaluation if it is severe with marked muscular dystrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2015). Upon examination in July 2009, the examiner noted a positive straight leg test for pain that radiates to the knee down the back of the leg. The Veteran had normal strength in the leg, normally strong plantar flexion tested against resistance and normal sensation in the foot. As an April 2009 MRI revealed impingement of the left S1 nerve root, the examiner concluded that the left leg nerve condition was secondary to the service-connected lumbar disability. In April 2014, examination revealed full left leg strength and reflexes, a normal sensory exam, and that straight leg testing was negative. The examiner nevertheless diagnosed left moderate, incomplete paralysis of the sciatic nerve seemingly based solely on the Veteran's reports of moderate, intermittent pain. The July 2014 VA spine examiner stated that the neurologic examination had remained essentially consistent since the 2009 examination and found the sciatic radiculopathy to manifest in mild, incomplete paralysis based on the Veteran's complaints of mild, constant pain. Again, examination revealed full left leg strength and reflexes and a normal sensory exam but straight leg testing was positive. The examiner noted that the Veteran's left lower extremity pain had changed from intermittent to constant, but that he described it as mild. The examiner noted that there was no loss of strength of the lower extremity, no atrophy or trophic changes are seen, normal gait is maintained, and the Veteran was observed to have no difficulty getting in and out of a chair, or accessing the exam table. In terms of dressing and undressing, the examiner stated that the Veteran was able to accomplish removal of lower extremity clothing, including trousers, shoes, and socks within a normal time frame without need for assistance. Finally, the Board notes that in a March 2015 statement, the Veteran reported that his disability no longer caused him pain or bothered him. While the April 2014 examiner found the radiculopathy to be moderate, this was based on a report of moderate pain which was only intermittent. Then, just three months later, the Veteran described his pain as constant and mild. Given the overall findings from July 2009 to July 2014, which was noted by the July 2014 VA examiner, and given the July 2014 examiner's findings that the Veteran's left lower extremity radiculopathy was manifested by mild, incomplete paralysis, the Board finds that the evidence demonstrates that his left lower extremity radiculopathy more closely approximates a 10 percent disability rating based on mild impairment throughout the entire period on appeal. As such, an increased schedular rating under Diagnostic Code 8520 is not warranted. Extraschedular Ratings In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1) (2015), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. The Board finds that the rating criteria specifically contemplate the Veteran's lumbar and left lower extremity disabilities. The lumbar disability has been manifested by loss of range of motion and pain. The rating criteria are based on a loss of range of motion and take into account the impact of pain on functioning. The left lower extremity radiculopathy is characterized as mild, incomplete paralysis of the sciatic nerve and is manifested by intermittent or constant pain. The rating criteria specifically account for mild, incomplete paralysis of the sciatic nerve and account for symptoms such as pain. 38 C.F.R. § 4.85. In other words, he does not experience problems due to this service-connected lumbar and/or left lower extremity disability that are not accounted for by the rating schedule and this is the case whether each disability is considered individually or whether their impact are considered in combination. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Therefore, referral for extra-schedular consideration is not warranted. In the previous Remand, the originating agency was directed to forward the Veteran a formal application for TDIU. In correspondence dated in May 2014, the Veteran clarified that he was a full time student and was not applying for TDIU at this time. Finally, there is nothing in the clinical record suggesting that the Veteran is unable to work due solely to service-connected disability. ORDER A disability rating in excess of 20 percent for lumbar disability is denied. An initial disability rating in excess of 10 percent for left lower extremity radiculopathy is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs