Citation Nr: 1808061 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-18 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a rating in excess of 40 percent for lumbosacral degenerative disc disease. 2. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity. ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to December 1985 and from June 2002 to September 2002. This matter comes before the Board of Veteran's Appeals (Board) on appeal of a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran has indicated on multiple occasions that she was forced to quit her position as a corrections officer due to her lumbar spine disability. Records in the claims file document that she chose to take disability retirement from that position. Additionally, the veteran has provided a document indicating that she was unable to pass a commercial driver examination. Such raises a claim for a TDIU, and the Board has taken jurisdiction over that claim at this time. See Rice v. Shinseki, 22 Vet. App. 477 (2009) (holding that a request for a TDIU whether expressly raised by the Veteran or reasonably raised by the record is not a separate claim for benefits, but rather, is part of a claim for increased compensation). FINDINGS OF FACT 1. The Veteran's lumbosacral degenerative disc disease has not been characterized by ankylosis. 2. The Veteran's radiculopathy of the left lower extremity has been characterized by moderate symptoms throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbosacral degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 (2017). 2. The criteria for a 20 percent rating, but no more, for left lower extremity radiculopathy, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, DC 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records as well as VA examinations are associated with the claims file. Therefore, VA has met its duty to assist with respect to obtaining pertinent evidence. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45 (2017); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2017). Lumbar Spine Disability In January 2012, the Veteran asserted a worsening of her lumbosacral degenerative disc disease. She is currently assigned a 40 percent rating under 38 C.F.R. § 4.71a, DC 5242, which pertains to degenerative arthritis of the spine. To obtain a rating in excess of 40 percent, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or entire spine. 38 C.F.R. § 4.71a, DC 5242 (2017). Ankylosis is the "immobility and consolidation of a joint due to disease, injury, surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Note (1) to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes 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." See 38 C.F.R. § 4.71a. Higher ratings are also permitted under Diagnostic Codes pertaining to intervertebral disc syndrome, however, there was no indication of such on VA examination. After consideration of the evidence in the claims file, the Board finds that the Veteran is not entitled to a rating in excess of 40 percent for her lumbar spine disability. The Veteran has not asserted that her disability is characterized by ankylosis. Additionally, the November 2012 and April 2014 VA examiners did not state that the Veteran suffered from ankylosis. The Board does not dispute that the Veteran suffers from chronic low back pain and spasms. In fact, during her November 2012 VA examination, the Veteran stated that she does not get flare-ups of back pain because her back hurts most of the time. To address her pain, she attended physical therapy, which was later found not to have a significant benefit. The Veteran's functional limitations have already been taken into account to award her the highest possible schedular rating for a veteran with a spine disability not characterized by ankylosis. It is important to note that her pain is not solely, and possibly not even primarily, from her lumbar spine disorder. Diagnoses in the record include degeneration of the cervical intervertebral disc as well as myofascial pain syndrome, both of which are not service-connected and cannot be considered as part of the basis of the Veteran's lumbar spine rating. For example, even though the Veteran has referenced her visits to the emergency room as a reason to increase her rating, her January 2012 emergency room visit was because of neck pain as a result of disc problems in her neck, which led to numbness and tingling in both of her hands. Additionally, an August 2012 emergency room visit was primarily the result of a complaint of headaches for 3 days, which medical records suggest may be related to her cervical spine disorder. Therefore, she is not entitled to a rating in excess of 40 percent for her lumbar spine disability. Neurological Abnormalities When evaluating the extent of a Veteran's spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a), Note 1. In this instance, the Veteran is currently assigned a rating for left lower extremity radiculopathy of 10 percent. The Veteran is rated under 38 C.F.R. §§ 4.124a, DC 8520 (addressing paralysis of the sciatic nerve). Under this diagnostic code, the ratings are as follows: * A 10 percent rating is appropriate when there is incomplete paralysis of the sciatic nerve which is "mild" in nature; * A 20 percent rating is appropriate when there is incomplete paralysis of the sciatic nerve which is "moderate" in nature; * A 40 percent rating is appropriate when there is incomplete paralysis of the sciatic nerve which is "moderately severe" in nature. 38 C.F.R. §§ 4.124a, DC 8520. The Board finds that a 20 percent rating, but no more, is warranted for the Veteran's radiculopathy of the left lower extremity. In her May 2014 substantive appeal, VA Form 9, the Veteran stated that her left leg becomes numb and she will occasionally drag her left leg. The Veteran underwent VA spine examinations in November 2012 and April 2014. During the November 2012 VA spine examination, the examiner determined that the Veteran's left lower extremity radiculopathy was characterized by moderate intermittent pain, which was cause to find that the Veteran suffered from moderate radiculopathy of the left lower extremity. However, during a simultaneously performed peripheral nerves examination, the examiner then continued to find that the Veteran's radiculopathy was of only a mild nature. The exact same pattern occurred during the April 2014 VA spine examination as the examiner determined that the Veteran exhibited radiculopathy of a moderate severity, but then continued in a peripheral nerves examination to state that it was only of a mild nature, citing mild paresthesias and/or dysesthesias as well as mild numbness. Acknowledging the Veteran's statement and finding the evidence is at least in equipoise as to whether the Veteran's radiculopathy is of a mild or moderate nature, the Board finds that the Veteran's radiculopathy is of a moderate nature. However, the Board does not find that the Veteran warrants a rating in excess of 20 percent. During both examinations, the Veteran exhibited normal muscle strength without muscle atrophy. The Veteran had a normal sensory examination and there were normal deep tendon reflexes for both the knee and ankle. The medical records and the Veteran's statements do not provide evidence to support a higher rating than 20 percent. In fact, the Veteran herself said in her substantive appeal that she thought she should receive a 20 percent rating. Therefore, the Board finds that a 20 percent rating, but no more, is warranted. When considering these ratings, the Board has considered the impact of functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In this case, the VA examiners took into account the functional limitations such as the Veteran's limited ability to move. The additional functional loss caused by the pain is taken into account for her range of motion measurements. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). The Veteran's complaints of pain, as discussed above, are adequately contemplated in the ratings she currently receives. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that her disabilities are worse than the ratings she currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. ORDER A rating in excess of 40 percent for lumbosacral degenerative disc disease is denied. A 20 percent rating, but no more, for left lower extremity radiculopathy, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ M. Tenner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs