Citation Nr: 1751511 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 06-10 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for ankylosis of par defect L5 S/P L5-S1 ALIF, posterior stabilization L5-S1 with left laminectomy at L5-S1 (lumbar spine disability) from December 21, 2003, in excess of 20 percent from March 4, 2004 (excluding a period of temporary total disability due to surgery and convalescence from August 13, 2004 to November 1, 2004), and in excess of 40 percent beginning December 30, 2014. 2. Entitlement to an initial rating in excess of 10 percent for left leg nerve radiation. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Army with active duty from October 1997 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which granted the Veteran's claim for service connection for a back condition and left leg radiation, among others. The RO assigned an initial rating of 10 percent for each disability, effective December 21, 2003. A July 2004 rating decision increased the Veteran's initial rating for chronic lower back strain to 20 percent, effective March 4, 2004. An August 2005 rating decision awarded a temporary total rating for convalescence for lower back strain between August 13, 2004, and October 31, 2004. Jurisdiction over the Veteran's claims was subsequently transferred to the Houston, Texas RO. A May 2015 rating decision specified the Veteran's lumbar spine disability as ankylosis of par defect L5 S/P L5-S1 ALIF, posterior stabilization L5-S1 with left laminectomy at L5-S1 and increased the Veteran's rating to 40 percent, effective December 30, 2014. This claim was most recently before the Board in April 2017, at which time it was remanded for further development to include scheduling the Veteran for a new VA examination. Pursuant to the April 2017 remand directives, the Veteran was afforded a new VA examination in July 2017. Stegall v. West, 11 Vet. App. 268 (1998). The claim has now returned to the Board for further appellate action. FINDINGS OF FACT 1. For the entire period on appeal, the preponderance of the evidence is against a finding that the Veteran's lumbar spine disability is manifested by unfavorable ankylosis of the entire thoracolumbar spine. 2. The preponderance of the evidence is against a finding that the Veteran's left leg nerve radiation is manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. For the period on appeal prior to December 30, 2014 (excluding a period of temporary total disability due to surgery and convalescence from August 13, 2004, to November 1, 2004), the criteria for a rating of 40 percent, but no higher, for a lumbar spine disability have been met; the criteria for a rating in excess of 40 percent have not been met throughout the entire time frame on appeal. 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, 4.10, 4.130, Diagnostic Code 5242 (2017). 2. The criteria for an initial rating in excess of 10 percent for left leg nerve radiation 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, 4.10, 4.130, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014) ; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. 38 U.S.C. § 5103(a). Here, letters sent to the Veteran in November April 2004 and December 2012, plus additional development letters, satisfied the VCAA notice requirement for his service connection claim because they provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. While the Veteran may not have been provided with adequate notice before all the claims were adjudicated, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claims in the October 2017 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, the Veteran has had the opportunity to allege that notice in this case was less than adequate and he has not done so. See Goodwin v. Peake, 22 Vet. App. 128 (2008). VA also has a duty to assist the Veteran in the development of his claims. This duty 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. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service treatment records and post-service VA treatment records have been obtained and associated with the claims file and he has not indicated that there are any additional records that VA should seek to obtain on his behalf. The Veteran was most recently provided an examination in these matters in July 2017. A review of the examination reports shows that they contain sufficient clinical findings and discussion of the history and features of the disabilities to constitute an adequate medical examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the Veteran has not identified any additional evidence pertinent to his claims, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103 (a), or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of his claims. II. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability 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 shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board observes that the words "slight," "moderate," 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 (2016). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the process of arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104 (a) (West 2014); 38 C.F.R. §§ 4.2, 4.6. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104 (a) (West 2014). 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 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). a. Lumbar Spine Disability The Veteran's lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5235- 5242, and he is asserting that he is entitled to an increased rating based on the severity of the symptoms of his disability. Disabilities that fall under these Diagnostic Codes (in this case, Diagnostic Code 5237) require application of a General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitation Episodes, as follows: A 10 percent rating is warranted 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 is warranted for 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. Forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71. There are several notes set out after the applicable diagnostic criteria. First, associated objective neurologic abnormalities are to be rated separately under an appropriate Diagnostic Code. Second, for purposes of VA compensation, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Finally, for VA purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar spine, or entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficult walking because of a limited line of vision, restricted opening of the veteran's mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or the existence of dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The Veteran and his representative assert that the Veteran is entitled to an initial rating in excess of 10 percent from December 21, 2003, in excess of 20 percent from March 4, 2004 (excluding a period of temporary total disability due to surgery and convalescence from August 13, 2004 to November 1, 2004), and in excess of 40 percent beginning December 30, 2014. As will be discussed below, the Board finds that the Veteran is entitled to a rating of 40 percent for the period prior to December 30, 2014, but not more than 40 percent for the entire time frame on appeal. The Veteran has been afforded several VA examinations in connection with his lumbar spine disability. The first VA examination took place in in December 2003, while the Veteran was still in service. During that examination, the Veteran's range of motion for the thoracolumbar spine was as follows: forward flexion to 90 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, left lateral rotation to 45 degrees, and right lateral rotation to 45 degrees. See, December 2003 VA examination. Based off the results from this VA examination, the Veteran was assigned a 10 percent rating, effective December 21, 2003. See, January 2004 rating decision. In a March 2004 written correspondence to the RO, the Veteran stated that his lower back injury is worse than represented by his 10 percent rating, to the point of being unable to walk. He requested reconsideration of his initial 10 percent rating. See, March 2004 correspondence. Subsequently, the Veteran was afforded another VA examination in April 2004, where is range of motion was documented as follows: forward flexion to 45 degrees, left lateral flexion was to 20 degrees, right lateral flexion to 25 degrees, and extension to 30 degrees. Additionally, the examiner noted that the Veteran rated his pain as 10/10 and that he was being treated with prescriptions, physical therapy and pain management. See, April 2004 VA examination. As a result of this examination, a July 2004 rating decision increased the Veteran's disability rating to 20 percent, effective March 3, 2004. The Veteran filed a timely Notice of Disagreement with respect to the July 2004 rating decision, in which he stated that his lumbar spine disability was worse than what he is rated for and indicated that he would be requiring surgery on his back. See, August 2004 Notice of Disagreement. The Veteran was next provided with a VA examination in August 2004, following his lumbar laminectomy and stabilization. During this examination, range of motion was documented as follows: forward flexion to 60 degrees, extension to 30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 22 degrees, left lateral rotation to 20 degrees, and right lateral rotation to 22 degrees. It was noted that the Veteran had weakness, lack of endurance, and that "pain has major functional impact." See, August 2004 VA examination. As a result of the Veteran's spinal surgery, an August 2005 rating decision granted the Veteran a temporary total evaluation from August 13, 2004, through October 31, 2004. The Veteran's 20 percent evaluation was reassigned effective November 1, 2004. In February 2006, the Veteran timely filed a Substantive Appeal in which he stated that his injuries were not being adequately represented by his ratings. The Veteran reiterated this in an April 2007 written correspondence to the RO. The Veteran was next provided with a VA examination in connection with his lumbar spine disability in September 2009. At this examination, symptoms reported by the Veteran included stiffness, spasms, decreased range of motion, and bowel problems. The Veteran also reported that the pain occurs constantly and has been occurring ever since the initial injury. The Veteran's range of motion was recorded as follows: forward flexion to 50 degrees, extension to 30 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right rotation to 15 degrees, and left rotation to 20 degrees. It was again noted that pain had a major functional impact. See, September 2009 VA examination. Following the Veteran's September 2009 VA examination, the Veteran's claim was remanded by the Board in November 2011 in order to afford the Veteran with an examination to address the severity of his lumbar spine disability. Pursuant to the Board's remand directives, the Veteran was next provided with a VA examination in December 2014. At this examination, pain, weakness, fatigability, and incoordination were all noted. The Veteran's range of motion was reported as follows: forward flexion to 20 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Favorable ankylosis of the entire thoracolumbar spine was noted. See, December 2014 VA examination. Following this VA examination, the Veteran's disability rating was increased to 40 percent with an effective date of December 30, 2014. See, May 2015 rating decision. The Board acknowledges that the Veteran's range of motion has varied at each of his examinations. However, the Board notes that the Veteran's reports of intense pain, weakness, fatigability, inability to walk, stand or sit for prolonged periods of time, and his use of a cane and back brace have been consistent beginning in 2003. The Veteran also received continuing treatment for his lumbar spine disability in the form of prescriptions, injections, physical therapy, and massages for the entire period on appeal. Notably, the Veteran received his lumbar laminectomy and stabilization surgery in August 2004, which implies that the severity of the Veteran's symptoms have been going on since his discharge from service. Additionally, the Board finds that the Veteran suffered additional functional loss due to his pain and flare-ups as contemplated by 38 C.F.R. § 4.59 (2016) and DeLuca v. Brown, 8 Vet. App. 202 (1995). While the Board notes that the Veteran does not meet the criteria for a 40 percent rating prior to December 30, 2014, based on range of motion, considering the Veteran's additional functional loss due to flare-ups, pain, and uncompensated loss of range of motion, the Veteran is entitled to a 40 percent rating, but no higher, for the entire period on appeal. With respect to entitlement to a rating greater than 40 percent, the Board notes that a 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine. The Veteran was most recently provided a VA examination in July 2017 to assess the severity of his lumbar spine disability. At that examination, the examiner indicated that the Veteran did not suffer from favorable or unfavorable ankylosis. See, July 2017 VA examination. As there is no evidence of unfavorable ankylosis during any time during the period on appeal, 50 and 100 percent ratings are not warranted. The Board also notes that the Veteran has not been diagnosed with intervertebral disc syndrome and therefore, the formula for rating intervertebral disc syndrome based on incapacitating episodes is not for application. 38 C.F.R. § 4.71a. Furthermore, the provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis, as is the scenario in the present case. Johnston v. Brown, 10 Vet. App. 80 (1997). Therefore, an even higher rating based on functional impairment is not available. b. Left Leg Nerve Radiation The neurologic diagnostic code applicable to the Veteran's left leg nerve radiation associated with his lumbar spine disability is Diagnostic Code 8520, concerning the evaluation of sciatic nerve paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost. Id. The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a. Neither the Rating Schedule nor the regulations provide definitions for words such as "moderately severe." Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). The Veteran was granted service connection for left leg nerve radiation in January 2004. While the Veteran has consistently stated that he feels radiating pain in his left leg, the level of severity was not assessed by a VA examiner until the Veteran's December 2014 VA examination. At the Veteran's December 2014 and July 2017 VA examinations, the examiners opined that the Veteran's left leg radicular symptoms are mild and that the overall severity is mild. See, VA examinations dated December 2014 and July 2017. While the Board acknowledges the Veteran's statements that he was previously experiencing radiating pain in his left leg, the Veteran is only competent to speak to the observable symptoms of his disabilities and not the severity of them. Jandreau v. Nicholson, 492. F.3d 1372 (Fed. Cir. 2007). Moreover, the medical opinions provided by the December 2014 and July 2017 VA examiners are not contradicted by any other clinical evidence of record, and consequently, the Board has assigned them high probative value. Colvin v. Derwinski, 1 Vet. App. 171 Accordingly, the Board finds that the evidence of record is against a finding that the Veteran's left leg nerve radiation warrants an initial rating in excess of 10 percent. 38 C.F.R. § 4.12a. ORDER Entitlement to a rating of 40 percent, but no higher, for ankylosis of par defect L5 S/P L5-S1 ALIF, posterior stabilization L5-S1 with left laminectomy at L5-S1 is granted for the period prior to December 30, 2014 (excluding a period of temporary total disability due to surgery and convalescence from August 13, 2004, to November 1, 2004), subject to the laws and regulations governing the payment of VA compensation; entitlement to a rating in excess of 40 percent during the entire time frame on appeal is denied. Entitlement to an initial rating in excess of 10 percent for left leg nerve radiation is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs