Citation Nr: 1816158 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 03-12 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an increased rating for herniated nucleus pulposus, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from an September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In June 2007, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO. A transcript of the hearing has been associated with the record. In an October 2012 decision, the Board denied the Veteran's claims, including entitlement to service connection for posttraumatic stress disorder (PTSD) and an increased rating for herniated nucleus pulposus. The Veteran appealed the decision to the Court of Appeals for Veterans' Claims (Court) and in a January 2014 Memorandum Decision the Court vacated the Board's October 2012 decision, with respect to the denial of the above claims and remanded the matter to the Board. In September 2014, the Board remanded the appeal. At that time, the appeal included the issue of entitlement to service connection for an acquired psychiatric disorder. While the appeal was in remand status, service connection for major depressive disorder was granted. As this award of service connection constituted a full grant of the benefit sought on appeal, this issue will not be addressed by the Board herein. The Board's September 2014 remand also noted that the Veteran had submitted a notice of disagreement regarding a November 2013 rating decision that denied service connection for obstructive sleep apnea. The Agency of Original Jurisdiction (AOJ) was directed to issue a statement of the case with respect to this issue pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that a statement of the case was subsequently issued, and that the Veteran perfected his appeal with respect to this issue; however, he is not represented in that appeal by the attorney listed above. Moreover, he has requested a hearing as to the issue of service connection for sleep apnea, which has not yet been held. Thus, the Board will not address this issue. FINDING OF FACT Herniated nucleus pulposus is manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; there is no objective evidence of unfavorable ankylosis of the entire thoracolumbar spine, and incapacitating episodes of intervertebral disc syndrome have a total duration of at least one week but less than two weeks in the past 12 months. CONCLUSION OF LAW The criteria for an evaluation in excess of 40 percent for herniated nucleus pulposus have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Veteran was notified of the evidence necessary to support his claims in correspondence dated in July 2003 and March 2006. This correspondence notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claims, identified his duties in obtaining information and evidence to substantiate his claims, and provided other pertinent information regarding the VCAA. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to VA's duty to assist, private, service, and VA treatment records have been associated with the electronic claims file. Relevant VA examinations have been conducted with respect to the Veteran's spine disability, and the Board finds that when viewed in conjunction with the other medical evidence of record, there is adequate information to fairly address the severity of the disability. The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate his claims. The Board is also unaware of any such outstanding evidence or information. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). 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. 38 C.F.R. §4.7. In determining the degree of limitation of motion, 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). 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. For the entirety of the appeal period, the Veteran's low back disability is evaluated as 40 percent disabling. The current appeal arises from a claim for increase submitted by the Veteran in March 2003. The RO denied the Veteran's increased rating claim in September 2004. The Board notes that in 2003, during the pendency of the Veteran's claim and appeal, amendments were made to the rating criteria evaluating disabilities of the spine. See 68 Fed. Reg. 51,454-58 (Aug. 27, 2003) (codified at 38 C.F.R. § 4.71a , DCs 5235 to 5243). This amendment and subsequent correction were made effective from September 26, 2003. The rating criteria for evaluating intervertebral disc syndrome were also revised previously, effective from September 23, 2002. See 67 Fed. Reg. 54,345-49 (Aug. 22, 2002); (codified at 38 C.F.R. § 4.71a , DC 5293). Generally, in a claim for an increased rating, where the rating criteria are amended during the course of an appeal, the Board considers both the former and current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Principi, 1 Vet. App. 308, 312-13 (1991), to the extent it held that where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version more favorable to the appellant should apply). See also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000); 38 U.S.C.A. § 5110 (g) (West 2002); 38 C.F.R. § 3.114 (2011). A review of the record demonstrates that the RO considered the old and new rating criteria in its September 2004 rating decision, and the that Veteran was made aware of the changes. See Bernard v. Brown 4 Vet. App. 384 (1993). Therefore, the Board will proceed to review the Veteran's service-connected lumbar spine disability under the old and new criteria. Prior to September 26, 2003, DC 5292 provided that limitation of motion of the lumbar spine warranted a 10 percent rating if slight, a 20 percent rating if moderate, and a 40 percent rating if severe. 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 was directed to evaluate all of the evidence to the degree that its decisions were "equitable and just." See 38 C.F.R. § 4.6 (2011). 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 arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2011). Under DC 5286, unfavorable ankylosis of the lumbar spine was evaluated as 50 percent disabling. Prior to September 26, 2003, DC 5293 provided that intervertebral disc syndrome was evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation. For incapacitating episodes, a rating of 10 percent was warranted where there were incapacitating episodes with a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating was warranted where there are incapacitating episodes with a total duration of at least two weeks but less than hour weeks during the past 12 months. A rating of 40 percent was warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent was warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a , DC 5293 (2003). For these purposes, an incapacitating episode is defined 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. Id. at Note (1). Chronic orthopedic and neurologic manifestations means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Id. at Note (1). When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. at Note (2). Under the amendment to the Rating Schedule that became effective on September 26, 2003, a general rating formula was instituted for evaluating diseases and injuries of the spine. See 68 Fed. Reg. 51,454-58 (Aug. 27, 2003); 69 Fed. Reg. 32,449, 32,450 (June 10, 2004) (codified at 38 C.F.R. § 4.71a , DCs 5235 to 5343 (2011). The General Rating Formula applies to Diagnostic Codes (DCs) 5235 to 5243, unless DC 5243 is evaluated under the IVDS Formula. 38 C.F.R. § 4.71a, General Rating Formula, preliminary note. In other words, under DC 5243, intervertebral disc syndrome is to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, General Rating Formula, DC 5243 and Note. Under the General Rating Formula, the following evaluations are to be assigned for spinal disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 20 percent evaluation will be assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. A 40 percent evaluation is warranted where there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. Additionally, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under the appropriate diagnostic codes. Id. at Note (1). Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The normal combined range of motion for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243 (2017). Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis has also been defined as stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Under the IVDS formula, a rating of 20 percent is warranted where there are incapacitating episodes with a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, an incapacitating episode is defined 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. Id. at Note (1). On VA examination in September 2003, the Veteran reported having constant lumbosacral pain that was 8/10 in intensity, and occasionally increased to 10/10. He endorsed flare-ups occurring in the afternoon and precipitated by staying in the same position for a prolonged period. He stated that, during flare-ups, he had increased difficulty twisting his leg and putting on his shoes and socks. He reported unsteadiness associated with pain, which was more common in the morning. He reported numbness of both extremities, and occasional weakness. Despite the foregoing, the examiner noted that the Veteran was fully independent in self care and activities of daily living, although there was difficulty reaching his legs during flare-ups. The Veteran also reported being independent in all transfers and mobility, although he used a cane to ambulate. Objective examination revealed an erect posture with normal curvatures of the spine. Range of motion testing revealed forward flexion to 30 degrees, extension to 25 degrees, lateral flexion to 30 degrees on both sides with pain, and rotation to 15 degrees on both sides. The examiner noted that there were no additional factors that limited his range of motion. However, he noted that there was additional limitation of function and motion after repetitive movement, with complaints of increased pain and lack of endurance. There was guarding on palpation of the lumbosacral area, with tenderness around the lumbosacral paravertebral muscles bilaterally. There were no postural deformities, ankylosis, or abnormality of the back muscles. Neurological examination revealed decreased pinprick at the right medial calf, with no other deficits in the legs. There was no muscular atrophy, and muscle tone was good. Strength was 4/5 at the iliopsoas, left quadriceps, and hamstrings due to pain inhibition; strength was otherwise 5/5. The examiner noted that there were no other neurologic effects of the low back disability. The examiner also noted that there was no clear history of incapacitating episodes recently. On VA examination in May 2005, the Veteran reported constant low back pain that increased in severity with prolonged standing, sitting, and walking, and resulted in decreased ambulation. He reported that he occasionally needed help bathing and bending to dress the lower part of his body, but was otherwise independent in activities of daily living. Range of motion testing revealed forward flexion to 29 degrees, with pain at 29 degrees; extension to seven degrees, with pain at seven degrees; lateral flexion to 12 degrees bilaterally, with pain at 12 degrees; and rotation to 15 degrees bilaterally, with pain at 15 degrees. The examiner noted that the Veteran was not limited by fatigue, weakness, or lack of endurance following repetitive use. There was spasms and tenderness to palpation in the lumbar paravertebral muscles, which the examiner stated were not severe enough to result in abnormal gait or abnormal spinal contour. Neurological examination revealed decreased pinprick on the right at the S1 and L5 dermatomes. Muscle strength was 5/5. Reflexes were 2+. The diagnoses included right S1 radiculopathy. On VA examination in September 2010, the Veteran denied a history of hospitalizations, surgery, or flare-ups. While he reported decreased motion, spasms, and pain, he denied fatigue, stiffness, and weakness. He also denied any incapacitating episodes of spine disease. Objective examination revealed an antalgic gait with normal posture. There was no evidence of abnormal spinal contour, including ankylosis; however, there was objective evidence of bilateral spasms, guarding, painful motion, and tenderness, which the examiner stated were severe enough to be responsible for abnormal gait. Range of motion testing revealed forward flexion to 55 degrees, extension to 20 degrees, lateral flexion to 20 degrees on both sides, and lateral flexion to 25 degrees on both sides. There was objective evidence of painful motion, including following repetitive motion. Sensory examination was normal bilaterally. Detailed motor examination was also normal, and there was no muscle atrophy. On VA examination in March 2012, range of motion testing revealed forward flexion to 40 degrees with pain at 20 degrees, extension to 30 degrees with pain at 25 degrees, lateral flexion to 30 degrees with pain at 20 degrees bilaterally, and rotation to 30 degrees with pain at 20 degrees bilaterally. There was no additional limitation following repetitive use testing. Muscle strength was 5/5 throughout, and there was no atrophy. Reflexes were 2+ throughout. Sensory examination was normal. There were no other neurologic abnormalities. The examiner noted that there was no IVDS. This examiner also addressed the question of whether the Veteran had neurogenic bladder related to his low back disability, and stated that he did not. On evaluation in November 2012 for a Social Security Administration claim, a physician noted 80 degrees of flexion of the lumbar spine, and 30 degrees of lateral flexion bilaterally. On VA examination in October 2014, the Veteran complained of severe pain with radiation to the right lower extremity. He endorsed flare-ups that caused difficulty walking. Range of motion testing revealed forward flexion to 35 degrees with pain at 35 degrees, extension to 10 degrees with pain at 10 degrees, lateral flexion to 10 degrees with pain at 10 degrees bilaterally, and rotation to 10 degrees with pain at 10 degrees bilaterally. There was no additional limitation following repetitive use testing. Muscle strength was 5/5 throughout, and there was no atrophy. Reflexes were 2+ throughout. Sensory examination was normal with the exception of decreased light touch at the right lower leg. Straight leg raising was normal bilaterally. Radiculopathy on the right was noted to be mild. There was no ankylosis. There were no other neurologic abnormalities. The examiner indicated that there was IVDS, with incapacitating episodes with a total duration over the past 12 months of at least one week but less than two weeks. He noted that the condition did not affect the Veteran's ability to work. On VA examination in December 2015, the Veteran reported persistent pain with numbness in the right lower extremity. He endorsed flare-ups, noting that prolonged walking exacerbated the condition. Range of motion testing revealed flexion to 25 degrees and extension, lateral flexion, and rotation to five degrees. There was evidence of pain with weight bearing, and paravertebral muscle tenderness. There was no additional loss of function following repetitive use. Muscle strength testing was 5/5 throughout. There was no muscle atrophy. Reflexes were 2+ throughout. Sensory examination revealed decreased light touch in the L4-5, S1 dermatome on the right, and was otherwise normal. Straight leg raising was negative. Radiculopathy on the right was noted to be mild. There was no radiculopathy yon the left. There was no ankylosis. The examiner indicated that there were episodes of IVDS requiring bed rest for a total duration of at least one week but less than two weeks during the past 12 months. The Veteran's current 40 percent contemplates severe limitation of motion, or incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months, or unfavorable ankylosis of the lumbar spine under the old criteria; forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine under the new criteria. Under the old criteria, a 40 percent evaluation based on limitation of motion was the maximum evaluation available. Under the for IVDS effective prior to September 26, 2003, a maximum 60 percent evaluation required evidence demonstrating incapacitating episodes with a total duration of at least six weeks during the past 12 months. Such is not shown by the evidence of record. Moreover, at no point during the appellate period has the objective evidence demonstrated ankylosis of the lumbar spine. Therefore, the Board concludes that a higher evaluation is not available under these criteria. The Board acknowledges that DC 5293 prior to September 26, 2003 also allowed for evaluation of IVDS on the basis of combining under § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method resulted in the higher evaluation. As noted above, the regulation directs that when evaluating on this basis, orthopedic disabilities should be evaluated using the criteria for the most appropriate orthopedic diagnostic code or codes, and neurologic disabilities should be evaluated separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. In this regard, the chronic orthopedic manifestation of the Veteran's herniated nucleus pulposus consist of limitation of motion caused by pain and spasm. This is most appropriately evaluated as 40 percent disabling pursuant to the criteria for evaluation based on limitation of motion. Moreover, the Board observes that the only related chronic neurologic manifestation demonstrated by the medical evidence is mild radiculopathy of the right lower extremity, which has, for the entirety of this appeal, been evaluated as 10 percent disabling. The September 2003 examiner indicated that aside from decreased pinprick at the right medial calf, there were no other neurologic effects. The May 2005 examination revealed similar findings. In September 2010 and March 2012, sensory examination was normal. The March 2012 examiner indicated that there were no bowel or bladder disabilities related to the low back disability. October 2014 and December 2015 examinations revealed radiculopathy on the right, but no other neurologic abnormalities. Aside from limitation of motion of the lumbar spine and radiculopathy for which the Veteran has been in receipt of compensation during the pendency of this appeal, there are no additional manifestations warranting evaluation. Under the current criteria for evaluation of spine disabilities, an evaluation higher than 40 percent requires evidence demonstrating unfavorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of IVDS with a total duration of at least 6 weeks during the past 12 months. The objective evidence, while revealing severe limitation of motion, does not demonstrate ankylosis of the thoracolumbar spine. Moreover, VA examiners have repeatedly concluded that incapacitating episodes of IVDS had a total duration of at least one week but less than two weeks over the previous 12 months. In sum, the Board finds that the criteria for a higher evaluation are not met, as there is no basis for the assignment of a schedular evaluation in excess of 40 percent for the Veteran's herniated nucleus pulposus. The Board accepts that the Veteran has experienced functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion required to warrant the next higher evaluation. The Board therefore finds that the evaluation assigned herein is appropriate for the Veteran's thoracolumbar spine disability. ORDER Entitlement to an evaluation in excess of 40 percent for herniated nucleus pulposus is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs