Citation Nr: 1633639 Decision Date: 08/25/16 Archive Date: 08/31/16 DOCKET NO. 10-28 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Gibbs, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 2006 to March 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decisions by the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas that granted service connection for low back strain with L4 defect, rated 10 percent, effective March 31, 2009. [The disability is characterized as stated on the preceding page to reflect that it also encompasses the disc pathology noted on recent examination.] In December 2013 this matter was remanded for additional development ((by a Veterans Law Judge other than the undersigned). It is now assigned to the undersigned. FINDINGS OF FACT 1. At no time under consideration is the Veteran's low back disability shown to have been manifested by forward flexion limited to 60 degrees or less; combined range of motion (ROM) limited to 120 degrees or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; ankylosis of the spine; neurological manifestations other than of the lower extremities; or incapacitating episodes of disc disease. 2. From March 8, 2016 (but not earlier) the Veteran's low back disability is shown to have been manifested by mild sciatica in each lower extremity, consistent with mild, but not greater, incomplete paralysis of the sciatic nerve in each lower extremity. CONCLUSIONS OF LAW 1. A rating on excess of 10 percent is not warranted for orthopedic manifestations of the Veteran's low back disability or based on incapacitating episodes for any period of time under consideration. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.71a; Diagnostic Code (Code) 5237 (2015). 2. Separate 10 percent ratings, each , are warranted for left and right lower extremity radiculopathy as neurological manifestations of the Veteran's low back disability, from March 8, 2016 (but not earlier). 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.71a, Code 5243, 4.124a, Code 8520 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. An April 2010 Statement of the case properly provided notice on the downstream issue of entitlement to an increased initial rating. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Prejudice from a VCAA notice defect is not alleged. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for VA examinations in May 2009, February 2014, and March 2016. The Board finds that the VA examination reports contain sufficient clinical findings and informed discussion of the history and features of the disabilities to constitute probative medical evidence adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record as it now stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. The Board also finds that there has been substantial compliance with the instructions in the Board's December 2013 remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002); Stegall v. West, 11 Vet. App. 268 (1998). VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Veteran's service connected low back disability has been rated under 38 C.F.R. § 4.71a, 5237 (for lumbosacral strain) and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Because the most recent VA examination found there is associated disc pathology, the Board find the disability is more appropriately rated under Code 5243, which provides for rating based on incapacitating episodes alternatively to rating under the General Formula (i.e., whichever criteria are more favorable). Under the General Formula a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees or, there is 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 is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or, for the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or, for 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 limited to 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Note (1) following provides that any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. Notes (2) and (4) provide, respectively, that 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. All measured ranges of motion are to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 8520, an 80 percent rating is assigned for complete paralysis of the sciatic nerve. A 60 percent rating is assigned for severe incomplete paralysis of the nerve, with marked muscular atrophy; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 20 percent rating is assigned for moderate incomplete paralysis; and a 10 percent rating is assigned for mild incomplete paralysis. 38 C.F.R. § 4.124a. A note preceding the criteria for rating peripheral nerves stipulates that when the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the ratings are assigned based on number of weeks of such episodes per year. Note (1).following defines an "incapacitating episode" as "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. 38 C.F.R. § 4.71a. As the record does not show that bedrest was prescribed by a physician for the back disability at any time under consideration, further discussion of these criteria is not necessary, In determining the degree of limitation of motion for the Veteran's lumbar spine disability, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disease. 38 C.F.R. § 4.45. When a claim for increase concerns the initial rating assigned with a grant of service connection, the entire period of time from the grant of service connection to the present is for consideration, and separate ratings may be assigned for separate and distinct periods when varying degrees of disability were shown, a practice known as "staged ratings". See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue, including the degree of disability, shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board has reviewed the Veteran's entire record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. On a June 2009 VA examination, it was noted that curvature of the Veteran's spine. Was normal; there were no deformities and no swelling. Forward flexion was 0 -100 degrees without pain; extension was 0-30 degrees without pain; right and left lateral rotation was 0 -30 degrees, each, without pain; and right and left lateral flexion was 0 -25 degrees, each, without pain. In his February 2010 notice of disagreement, the Veteran stated that he is unable to complete all necessary movements necessary in his work duties as an automobile mechanic. On January 2014 thoracolumbar spine examination, lumbosacral strain was diagnosed. It was noted that flare ups consisted of sharp pains that worsened upon picking up a child or after sleeping in certain positions. Combined range of motion of the lumbar spine was 170 degrees, and muscle spasms or guarding resulting in an abnormal gait were not noted. There was no localized pain or tenderness to palpitation; it was noted that the Veteran did not report leg pains or numbness. On March 8, 2016 thoracolumbar spine examination, lumbosacral strain was diagnosed. It was noted that the Veteran reported flare-ups of increased pain, stiffness, and bilateral numbness. The examiner noted that the Veteran did not have any functional loss or impairment. It was noted that all ranges of motion, initially were normal (the report showed listings of what constituted normal ranges of motion). The Veteran exhibited pain at rest and on extension. There was localized tenderness over the lower lumbosacral spine directly in the midline and at the bilateral SI joints. The Veteran was able to perform repetitive testing and there is no additional loss of function or range of motion after three repetitions, and it was noted that there was no guarding or muscle spasms. It was noted that the Veteran had mild numbness of both lower extremities, with involvement of the L4/L5/S1/S2/S3 nerve roots (sciatic nerve). It was also noted that X-rays in 2007, 2008, and 2024 had shown disc pathology. Considering the criteria under the General Formula, it is not shown that at any time under consideration, and even with factors such as pain, use, fatigue considered, the Veteran's low back disability was manifested by limitation of flexion to 60 degrees or less (or was ankylosed); that the combined range of motion was 120 degrees or less; or that there was guarding or spasms resulting in abnormal gait or spinal contour. (See June 2009, January 2014, and March 2016 VA examination reports which show ranges of motion substantially exceeded the limitations that would warrant a 20 percent rating, or were normal, and did not find guarding, spasms, or abnormal gait.) Significantly also, neurological manifestations other than of the lower extremities (which will be discussed in greater detail below) have not been reported, or alleged. Consequently, a rating in excess of 10 percent for orthopedic manifestations of the low back disability for any period of time under consideration. Regarding neurological manifestations of the lower extremities, on March 8, 2016 VA examination the examiner noted that the Veteran did have radicular pain or other signs of radiculopathy, and mild numbness of both lower extremities, but did not have paresthesias or other signs or symptoms of radiculopathy. It was noted that there was involvement of the sciatic nerve roots. [The Board observes that while the examiner indicated that the Veteran did not have thoracolumber disc disease, that finding is patently contradicted by the notations on the same examination of X-ray findings of disc pathology and sciatic nerve involvement.] Such findings reasonably reflect mild (but not greater) incomplete paralysis of the sciatic nerve and warrant a separate 10 percent rating for radiculopathy of each lower extremity as a neurological manifestation of the service connected low back disability, from the March 8, 2016 date of the examination, but not earlier. The Board has also considered whether referral of this matter for consideration of an extraschedular rating is indicated. All symptoms and impairment shown are encompassed by the schedular criteria. The limitations of motion earlier found and the reports of daily pain specifically considered in the schedular criteria for rating disabilities of the spine and the lower extremity numbness recently noted is encompassed in the criteria for the separate neurological ratings assigned herein. There is nothing exceptional or unusual regarding the disability picture presented by the Veteran's low back disability. See 38 C.F.R. § 3.321(b) ; Thun v. Peake, 22 Vet. App. 111 (2008). Consequently, referral for extraschedular consideration is not warranted. Finally, while the Veteran had indicated early in the appeal that his low back disability impaired his ability to fully manage all duties of his occupation as a mechanic, he has not alleged (nor is it otherwise suggested by the record) that by virtue of the low back disability he is prevented from maintaining regular substantially gainful employment. Hence, the matter of entitlement to a TDIU rating is not raised in the context of the instant claim for increase. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating in excess of 10 percent for orthopedic manifestations of the Veteran's low back disability is denied. From March 8, 2016, but not earlier, a separate 10 percent rating is granted for radiculopathy of each lower extremity (as a neurological manifestation of the low back disability), subject to the regulations governing payment of monetary awards. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs