Citation Nr: 1808470 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-22 324 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 40 percent for a back disability for the period of May 2, 2007 to March 28, 2014. 2. Entitlement to an extra-schedular evaluation for a back disability, currently evaluated on a schedular basis as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse. ATTORNEY FOR THE BOARD J. Wozniak, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from June 1975 to June 1978. Effective March 2014, the Veteran's combined service-connected disability rating is 100 percent. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2008 of the Roanoke, Virginia, Regional Office (RO). In February 2016, the Board remanded the appeal to the RO for additional development and instructed the RO to send the Veteran's claim for extra-schedular consideration by the Under Secretary for Benefits or the Director, Compensation and Pension Service. In October 2016, the Under Secretary for Benefits or the Director, Compensation and Pension Service issued a decision denying entitlement to an increased evaluation on an extra-schedular basis for the Veterans back disability. Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence and conducted any appropriate medical inquiry. The appeal is ready for appellate review. In August 2013, the Veteran was afforded a central office hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. In a June 2014 rating decision, the RO granted an increased rating to 60 percent for the Veteran's back disability, effective March 29, 2014. In a September 2016 note from the Appeals Management Center (AMC), the AMC explained that the 60 percent rating increase would not be implemented because it is more beneficial to the Veteran to continue to receive a 40 percent rating for his back and receive additional compensation for his neurological abnormalities. To clarify the Board also notes that section M21-1, III.IV.4.A.4.c of the Compensation and Pension Manual should be cited along with the citations included in the September 2016 AMC note. FINDINGS OF FACT 1. During the period of May 2, 2007 to March 28, 2014, the Veteran's back disability has been characterized by no more than numbness, pain, stiffness, fatigue, inability to walk more than 100 meters, range of motion measurements including flexion of 0 to 30 degrees, extension of 0 to 5 degrees, right lateral flexion of 0 to 5 degrees, left lateral flexion of 0 to 5 degrees, right lateral rotation of 0 to 10 degrees, and left lateral rotation of 0 to 10 degrees, no ankylosis, IVDS with 6 weeks of incapacitating episodes over the preceding 12 months. Moderate pain, parethesias, and numbness in the right lower extremity and severe pain and parethesias in the left lower extremity. A scar measuring less than 39 square centimeters with no pain, underlying tissue damage, inflammation, edema, keloid, disfigurement, or limitation of motion due to the scar. 2. The Veteran's back disability is not productive of symptoms other than those contemplated by the schedular criteria; and does not present an exceptional or unusual disability picture, with factors such as marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent, for the period of May 2, 2007 to March 28, 2014, for a back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243 (2016). 2. The criteria for an extra-schedular rating for a back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321(b)(1) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased rating for back disability Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). Diagnostic Code 5237 provides ratings for degenerative arthritis of the spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 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. 38C.F.R. § 4.71a, Diagnostic Code 5237. There are also several relevant note provisions associated with Diagnostic Code 5237. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 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 thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): 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 Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Diagnostic Code 5243 is an alternative provision for the evaluation of intervertebral disc syndrome (IVDS). A 10 percent rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. There are also two relevant note provisions associated with Diagnostic Code 5243. Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Note (2): If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Lower extremity radiculopathy is rated according to Diagnostic Code 8520. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. A 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and a 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear are rated as follows: for an area or areas of 144 square inches (929 sq. cm.) or greater a 40 percent rating is assigned; for an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.), a 30 percent rating is warranted; for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) a 20 percent rating is warranted; for an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) a 10 percent rating is warranted. There are also two relevant note provisions associated with Diagnostic Code 7801. Note (1): A deep scar is one associated with underlying soft tissue damage. Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. Diagnostic Code 7804 is applicable when scars are unstable or painful. Under Diagnostic Code 7804 a 10 percent rating is warranted when there are one or two scars that are unstable or painful. A 20 percent rating is warranted when there are three or four scars that are unstable or painful. A 30 percent rating is warranted when there are five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7804. Diagnostic Code 7804 includes three note provisions: Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 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 innervation, 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 which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A May 2007 private treatment note indicates the Veteran experienced increased pain in his buttocks and numbness in his toes. An October 2007 private treatment note from Dr. B.N. indicated the Veteran had worsened pain, numbness in his whole foot, and could not walk more than 100 meters. In an October 2007 letter, Dr. M.H. indicated the Veteran experienced left lumbar radiculopathy which radiated down his legs. In January 2008, the Veteran was afforded a VA examination. The Veteran reported stiffness, weakness, and pain radiating down to his lower extremities. The examiner noted an abnormal gait and tenderness, but no ankylosis. The Veteran's range of motion measurements included flexion of 0 to 60 degrees, extension of 0 to 5 degrees, right lateral flexion of 0 to 20 degrees, left lateral flexion of 0 to 20 degrees, right lateral rotation of 0 to 20 degrees, and left lateral rotation of 0 to 20 degrees. The examiner noted fatigue, weakness, lack of endurance, and incoordination. The examiner also reported intervertebral disc syndrome with no bowel or bladder dysfunction. The clinician noted a scar measuring 3 cm by 0.2 cm with no tenderness, disfigurement, ulcerating, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, hyperpigmentation or abnormal texture. A February 2008 treatment note indicates the Veteran experienced an aching and burning pain in his low back accompanied by numbness. The Veteran recorded that bed rest was required to ease pain. A June 2008 private treatment note indicated the Veteran experienced pain in the low back radiating down the left side with numbness in his toes. An August 2008 treatment note reported the Veteran experienced near constant severe burning, cramping, and sharp pain. The examiner noted limited range of motion with forward flexion limited to 15 degrees. In November 2008, the Veteran indicated that he had been incapacitated several times requiring bed rest. In a January 2009 consultation report the Veteran indicated a history of back pain and radicular pain for the preceding four years with a back surgery in 2006. The examiner noted bowel problems, particularly constipation, but noted no bladder problems. The examiner also reported range of motion limited to 10 degrees but did not specify in which direction. In a March 2009 lay statement the Veteran's friend indicated that the Veteran's disabilities have rendered him almost immobile and without range of motion or the ability to participate in physical activities. In March 2009, the Veteran's wife stated the Veteran's back injury had increased in severity and had a negative effect on his quality of life. The statement indicates the Veteran's pain has caused him to miss countless days of work and numerous family outings over the preceding two years. A March 2010 private treatment note indicates the Veteran has limited range of motion in flexion and extension but does not provide further detail. In April 2010, the Veteran was afforded a VA examination. The Veteran reported stiffness, fatigue, spasms, decreased motion, paresthesia, and numbness due to his spine condition. The examiner noted a scar measuring 4 cm by 0.3 cm with no pain, underlying tissue damage, inflammation, edema, keloid, disfigurement, or limitation of motion due to the scar. The examiner reported a guarded gait and ambulation requiring the use of a cane. The Veteran's range of motion measurements include flexion of 0 to 30 degrees, extension of 0 to 5 degrees, right lateral flexion of 0 to 5 degrees, left lateral flexion of 0 to 5 degrees, right lateral rotation of 0 to 10 degrees, and left lateral rotation of 0 to 10 degrees. The examiner noted a diagnosis of low back strain with arthritic changes. A July 2011 letter from the Veteran's employer indicated the Veteran's health has declined over the preceding several years and had a noticeable negative impact on the Veteran's energy. The Veteran's employer stated that in the 12 month period ending with July 2011, the Veteran had taken 67 total sick days. In the Veteran's August 2013 hearing testimony he indicated that his condition has steadily declined since 2006 and he was limited in his ability to travel and sit for long periods of time. The Veteran also testified that his back pain flared up two or three times every six months, limiting him to bedrest for days or weeks. The Veteran noted employment with the same company for 28 years and stated that his boss has been very accommodating to his health issues due to the value he has brought to the company in the past. In March 2014, the Veteran was afforded a VA examination. The Veteran reported constant pain, limited range of motion, and an inability to stand or walk for long periods of time. The Veteran also reported pain and numbness in his lower extremities and stated that his low back pain interfered with his ability to have bowel movements due to the pain with straining and sitting on the toilet. The Veteran's range of motion measurements included flexion of 0 to 45 degrees, extension of 0 to 10 degrees, right lateral flexion of 0 to 10 degrees, left lateral flexion of 0 to 10 degrees, right lateral rotation of 0 to 10 degrees, and left lateral rotation of 0 to 10 degrees. The examiner noted no muscle atrophy, guarding, or muscle spasm. The examiner also reported moderate pain, parethesias, and numbness in the right lower extremity with severe pain and parethesias in the left lower extremity. The examiner indicated a diagnosis for intervertebral disc syndrome (IVDS) with 6 weeks of incapacitating episodes over the preceding 12 months and a scar of less than 39 square centimeters that was not unstable or painful. During the period of May 2, 2007 to March 28, 2014, the Veteran's back disability has been characterized by no more than numbness, pain, stiffness, fatigue, inability to walk more than 100 meters, range of motion measurements including flexion of 0 to 30 degrees, extension of 0 to 5 degrees, right lateral flexion of 0 to 5 degrees, left lateral flexion of 0 to 5 degrees, right lateral rotation of 0 to 10 degrees, and left lateral rotation of 0 to 10 degrees, no ankylosis, IVDS with 6 weeks of incapacitating episodes over the preceding 12 months. Moderate pain, parethesias, and numbness in the right lower extremity and severe pain and parethesias in the left lower extremity. A scar measuring less than 39 square centimeters with no pain, underlying tissue damage, inflammation, edema, keloid, disfigurement, or limitation of motion due to the scar. The Veteran's low back disability with IVDS can be rated under either Diagnostic Code 5237 for limited motion or under Diagnostic Code 5243 for incapacitating episodes. Both codes cannot be used as this would constitute pyramiding. If rated under Diagnostic Code 5243, the Veteran would not be entitled to additional ratings for his neurological abnormalities. Therefore, it is more beneficial to the Veteran's overall rating to be rated for limitation of motion under Diagnostic Code 5237. The Board finds the Veteran's low back disability most closely approximates a 40 percent rating during the period of May 2, 2007 to March 28, 2014, under Diagnostic Code 5237. A 50 percent rating is not warranted because the Veteran's back is not ankylosed. The Veteran's right lower extremity radiculopathy most closely approximates a 20 percent rating and the Veteran's left lower extremity radiculopathy most closely approximates a 60 percent rating. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making this determination, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). A rating of 40 percent is not warranted for the Veteran's right lower extremity radiculopathy because the Veteran does not have moderately severe incomplete paralysis. A rating of 80 percent is not warranted for the Veteran's left lower extremity radiculopathy because the Veteran does not have complete paralysis. The Veteran's scar is non-compensable under Diagnostic Codes 7801 and 7804. Extra-schedular consideration Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional requirement that the Secretary should from time to time readjust this schedule of ratings in accordance with experience. To accord justice in the exceptional case where the standard schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The requirements in these exceptional cases is: A finding that 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. 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service (Director) to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Appropriate referral action was undertaken in this matter and the Director issued a decision in October 2016. The Board has reviewed the Director's findings and finds them well-supported by the record. The Veteran is receiving compensation under numerous diagnostic codes to account for his pain and the secondary disabilities that are associated with his back disability. These diagnostic codes address the many aspects of the Veteran's health affected by his back disability. Although the Veteran's back disability has limited the Veteran in various ways it has not caused frequent periods of hospitalization or marked interference with his employment. The Veteran has been continually employed with the same company for approximately 28 years as a project manager. The Veteran's employer has indicated a decrease in his energy but does not indicate reassignment, salary reduction, or termination of the Veteran's employment are immediately imminent. Given the numerous existing diagnostic codes already assigned to the Veteran and his continual employment, entitlement to an increased evaluation on an extra-schedular basis is denied. (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 40 percent for a back disability for the period of May 2, 2007 to March 28, 2014, is denied. Entitlement to extra-schedular evaluation is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs