DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

KATHLEEN K. GALLAGHER · 2017 · Case ID: 1724743

MIXED

Summary

The Veteran, who served from June 1991 to February 2012, appeals the denial of an initial compensable rating for degenerative joint disease (DJD) of the lumbar spine and for restless leg syndrome (RLS). The Regional Office (RO) initially granted service connection for both conditions but assigned noncompensable (zero percent) ratings. Following a March 2016 remand, the RO assigned a 10 percent rating for the lumbar spine effective June 9, 2016. The Board reviewed the evidence, including VA examinations from November 2013 and June 2016, a medical treatise on RLS, and the Veteran's testimony. For RLS, the Board found the evidence supported a 10 percent rating for moderate RLS, resolving doubt in the Veteran's favor based on a medical treatise defining moderate RLS by periodic limb movement index. The Board found a higher rating unwarranted as the evidence did not show severe RLS or paralysis. The lumbar spine claim was remanded because the June 2016 VA examination was inadequate; the examiner failed to test range of motion in active, passive, weight-bearing, and non-weight-bearing conditions, as required by regulation. The case was remanded for additional development, including obtaining outstanding VA treatment records and a new VA examination for the lumbar spine.

Rationale

June 2016 VA examination inadequate; Examiner failed to test range of motion in all required conditions; Remanded for additional development and new VA examination

Special Benefit

NO SPECIAL BENEFIT

Docket No.

14-14 091

Full Decision Text

Citation Nr: 1724743
Decision Date: 06/29/17 Archive Date: 07/10/17

DOCKET NO. 14-14 091 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska

THE ISSUES

1. Entitlement to an initial compensable rating for degenerative joint disease (DJD) of the lumbar spine for the period on appeal prior to June 9, 2016, and for a rating in excess of 10 percent for the period on appeal from June 9, 2016.

2. Entitlement to an initial compensable rating for restless leg syndrome (RLS).

REPRESENTATION

Veteran represented by: Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

M. C. Wilson, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1991 to February 2012.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The RO in Lincoln, Nebraska, currently has jurisdiction of the claims.

In pertinent part, the June 2012 rating decision granted service connection for RLS and DJD of the lumbar spine, and assigned noncompensable (zero percent) ratings for both disabilities, effective February 26, 2012, the day following the Veteran's discharge from active duty service.

These matters were previously before the Board in March 2016, at which time they were remanded for further development. Although there has been substantial compliance with the remand directives concerning the Veteran's RLS, review of the record indicates that additional development is necessary with regard to the claim for an increased rating for the Veteran's lumbar spine disability. Stegall v. West, 11 Vet. App. 268, 271 (1998).

Following the March 2016 remand, the RO granted a 10 percent rating for the lumbar spine disability, effective June 9, 2016.

The Veteran presented testimony before a Decision Review Officer in March 2013, and at a Board videoconference hearing before the undersigned Veterans Law Judge in June 2015. Transcripts of both hearings are of record.

The Board is required by law to review appeals in docket order unless unusual hardship or "other sufficient causes" have been shown to advance a case on the docket. 38 U.S.C.A. § 7107(a) (West 2015). In March 2015, VA's Deputy General Counsel for Legal Policy advised that the Board is not precluded from advancing cases on the docket under 38 U.S.C.A. § 7107(a)(2)(C) and 38 C.F.R. § 20.900(c)(1) in consideration of a VLJ's pending retirement if such action would "produce fair, efficient, timely, [and] effective review of appeals", but also "fairness in adjudications among and between veterans." Ramsey v. Nicholson, 20 Vet. App. 16, 34 (2006). Such advancement is not automatic.

Here, the undersigned VLJ will be retiring this spring and the Veteran's appeal is currently outside the "workable docket." Nevertheless, in this case, the Board has considered the benefit to the Veteran, the impact on other claimants that would result from advancing his case, and the impact on other claimants that would result if the case is not advanced, and has decided that advancement on the docket for the sole purpose of rendering this decision is fair and appropriate at this time.

The issue of the Veteran's entitlement to an increased rating for DJD of the lumbar spine is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDING OF FACT

The competent evidence of record does not show that the Veteran's diagnosed RLS has caused paralysis or is manifested by more than moderate limb movement.

CONCLUSION OF LAW

The criteria for an initial disability rating of 10 percent, but not higher, are met for RLS. 38 U.S.C.A. §§ 1155, 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a, Diagnostic Codes 8103 and 8520 (2016).

REASONS AND BASES FOR FINDING
FINDING OF FACT

The competent evidence of record does not show that the Veteran's diagnosed RLS has caused paralysis or is manifested by more than moderate limb movement.

CONCLUSION OF LAW

REASONS AND BASES FOR FINDING AND CONCLUSION

I. VA's Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2015); 38 C.F.R. § 3.159 (2016). As the Veteran's claim for an increased rating arises from his disagreement with the rating decisions that granted benefits, the Board finds that the Veteran's original claim for compensation was substantiated and any defect in the notice is not prejudicial. See 38 U.S.C.A. § 5103; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Pursuant to VA's duty to assist, VA has associated with the Veteran's claims file his VA treatment records and relevant information submitted by the Veteran, and provided examinations in November 2013 and June 2016. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The examination reports are adequate as the examiners provided sufficient, detailed descriptions of the Veteran's disability following examination. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

In summary, the Board finds that no further notice or assistance to the Veteran is required for a fair adjudication of his claims. All necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).

II. Merits of the Claim

Disability ratings are determined by applying the rating criteria set forth in VA's schedule for rating disabilities and represent the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.1 (2016). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2016).

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2016); see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7 (2016). Otherwise, the lower rating is assigned. Id. In reviewing the evidence, the Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999).

Generally, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14 (2016). Thus, separate ratings under different diagnostic codes are only permitted if, for example, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

Here, at various times during the period on appeal, the Veteran's RLS has been rated under 38 C.F.R. § 4.124a, Diagnostic Codes 8103 and 8520.

Diagnostic Code 8103 provides the criteria for rating
disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14 (2016). Thus, separate ratings under different diagnostic codes are only permitted if, for example, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

Here, at various times during the period on appeal, the Veteran's RLS has been rated under 38 C.F.R. § 4.124a, Diagnostic Codes 8103 and 8520.

Diagnostic Code 8103 provides the criteria for rating convulsive tics. A maximum 30 percent rating is warranted for severe tics, a 10 percent rating is warranted for moderate tics, and a noncompensable rating is warranted for mild tics.

Under Diagnostic Code 8520, which provides the criteria for rating neurological abnormality related to the sciatic nerve, complete paralysis of the sciatic nerve warrants an 80 percent rating. Complete paralysis is characterized by the following symptoms: foot dangling and dropping, active movement of the muscles below the knee is not possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis warrants a 60 percent rating is warranted if it is severe, with marked muscular atrophy; a 40 percent rating is warranted if it is moderately severe; a 20 percent rating is warranted if it is moderate; and a 10 percent rating is warranted if it is mild.

The Board notes that the Veteran has not demonstrated paralysis in either the left or right lower extremities; thus the present claim for an increased rating will be assessed under Diagnostic Code 8103.

The Veteran asserts that he has moderate RLS that should be rated 10 percent disabling. He and his spouse have reported that he jerks his legs uncontrollably at night.

A November 2013 VA central nervous system and neuromuscular diseases examination report indicates that the Veteran's RLS is a "movement disorder" and indicates that the Veteran underwent a polysomnogram that identified RLS by way of periodic limb movement. During that examination, he reported that he did not have any paresthesias, pain, or intense need to move the legs, and the examiner reported that the Veteran's overall condition appeared to be stable and resulted in no functional impairments. The examiner also endorsed that the Veteran's condition did not require continuous medication for control, he did not have muscle weakness of the extremities, he did not have bowel impairment or voiding dysfunction, he had normal strength upon knee extension and with plantar flexion and dorsiflexion of the ankles, and he had normal deep tendon reflexes in the knees and ankles. Additionally, he did not have muscle atrophy attributable to his condition and he did not use assistive devices as a normal mode of locomotion due to his condition. Notably, the examiner endorsed that the Veteran's RLS did not impact his ability to work at that time.

A June 2016 VA examination report documents similar findings and notes that the Veteran's August 2009 sleep study showed a leg movement index of 28 events per hour. The examiner reported that "[i]n terms of the effects of [RLS] on the [V]eteran's daily activity, given that he is unaware of the muscle groups involved or which leg is affected as well as uncertainty of whether it disrupts his sleep, the subjective estimate of severity is felt to be mild."

The Board notes, however, that the Veteran submitted a medical treatise in June 2015 that addresses RLS and periodic limb movement disorder (PLMD). The medical paper indicates the following, in pertinent part:

"The severity of PLMD is determined by the periodic limb movement index, which equals the number of periodic limb movements per hour of sleep. The periodic limb movement arousal index is the number of periodic limb movements associated with electroencephalographic arousals per hour of sleep. Mild PLMD is defined as 5 to 25 periodic limb movements per hour of sleep, moderate as 25 to 50 periodic limb movements per hour of sleep, and severe as greater than 50 periodic limb movements per hour of sleep or greater than 25 periodic limb movements associated with arousals per hour of sleep."

Based on the foregoing and in light of the VA's reports that the Veteran's RLS is a movement disorder that is characterized by periodic limb movement, the Board resolves any doubt in the Veteran's favor and finds that an initial 10 percent rating is warranted for moderate RLS. The Board finds that a rating in excess of 10 percent is not warranted as the competent evidence of record fails to show that the Veteran has had more
MD is defined as 5 to 25 periodic limb movements per hour of sleep, moderate as 25 to 50 periodic limb movements per hour of sleep, and severe as greater than 50 periodic limb movements per hour of sleep or greater than 25 periodic limb movements associated with arousals per hour of sleep."

Based on the foregoing and in light of the VA's reports that the Veteran's RLS is a movement disorder that is characterized by periodic limb movement, the Board resolves any doubt in the Veteran's favor and finds that an initial 10 percent rating is warranted for moderate RLS. The Board finds that a rating in excess of 10 percent is not warranted as the competent evidence of record fails to show that the Veteran has had more than moderate RLS. Additionally, as noted previously, the evidence does not show that the Veteran has incomplete or complete paralysis. There is no doubt to be resolved as to this matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49.

The Board acknowledges that in exceptional circumstances, where the schedular evaluations are found to be inadequate, 38 C.F.R. § 3.321(b)(1) provides that a veteran may be awarded a rating higher than that encompassed by the schedular criteria. Under the regulation, an extraschedular disability rating is warranted upon 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." If exceptional circumstances are found, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of assignment of an extraschedular evaluation. See id.

However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's disability that would render the schedular criteria inadequate. The rating schedule contemplates his limb movements, which characterize his disability. Thus, extraschedular consideration is not warranted.

Additionally, the record fails to show that all of the Veteran's service-connected disabilities, in the aggregate, have presented such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) (noting that a veteran may be awarded an extraschedular rating based upon the combined effect of multiple service-connected conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced).

Further, because the evidence does not indicate the Veteran is unemployable by reason of his service connected disability, the Board finds that consideration of that question is not warranted under Rice v. Shinseki, 22 Vet. App. 447 (2009).

ORDER

Subject to the law and regulations governing payment of monetary benefits, an initial disability rating of 10 percent, and not more, is granted for restless leg syndrome.

REMAND

The Board finds that a remand is necessary to adequately rate the Veteran's service-connected DJD of the lumbar spine. In June 2016, the Veteran was afforded a VA back examination in response to the March 2016 Board remand. The Board finds that the examination is inadequate because the examiner did not test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 38 C.F.R. § 4.59 (2016); Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016). Thus, an additional VA examination is needed for compliance with the VA's duty to assist. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the claims file outstanding records of the Veteran's VA treatment.

2. After the development requested above has been completed, schedule the Veteran for a VA examination for the purpose of ascertaining the current nature and severity of his service-connected lumbar spine disability, to include any functional effects. The Veteran's claims file should be made available to and be reviewed by the examiner, and (s)he must indicate whether such review was accomplished.

The examiner should determine the range of motion, in degrees. Range of motion testing must include both passive and active motion, as well as in weight-bearing and nonweight-bearing conditions. The VA examiner should state whether the lumbar spine is or can be considered a "weight-bearing joint" for purposes of range of motion testing of the joint. Correia, 28
development requested above has been completed, schedule the Veteran for a VA examination for the purpose of ascertaining the current nature and severity of his service-connected lumbar spine disability, to include any functional effects. The Veteran's claims file should be made available to and be reviewed by the examiner, and (s)he must indicate whether such review was accomplished.

The examiner should determine the range of motion, in degrees. Range of motion testing must include both passive and active motion, as well as in weight-bearing and nonweight-bearing conditions. The VA examiner should state whether the lumbar spine is or can be considered a "weight-bearing joint" for purposes of range of motion testing of the joint. Correia, 28 Vet. App. at 168, Footnote 7. It should be indicated whether and at what point during the Veteran's range of motion he experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated.

The examiner should also note whether the Veteran has any neurologic abnormalities (such as bowel or bladder impairment) that are associated with his lumbar spine disability and note the severity of any such abnormalities.

All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner's report that (s)he cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement.

3. Readjudicate the remaining issue on appeal. If the benefits sought on appeal are not granted in full, issue the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015).

______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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