Citation Nr: 1127284 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 05-10 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating greater than 20 percent for degenerative intervertebral disk disease of the lower lumbar spine for the period prior to December 3, 2008, and for the period from April 1, 2009 to December 7, 2010. 2. Entitlement to a evaluation in excess of 40 percent for degenerative intervertebral disk disease of the lower lumbar spine from December 7, 2010. 3. Entitlement to a initial compensable evaluation for radiculopathy of the right leg prior to November 30, 2009. 4. Entitlement to a evaluation in excess of 10 percent for radiculopathy of the right leg from November 30, 2009. 5. Entitlement to a separate compensable evaluation for associated manifestations of the spine disability, to include bowel dysfunction. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The veteran served on active duty from January 1981 to October 1984, from December 1990 to April 1991, and from December 1994 to March 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision the RO granted service connection for a low back disability the RO identified as degenerative intervertebral disk disease of the lower lumbar spine without evidence of radiculopathy. The RO assigned the disability a 20 percent rating effective from March 15, 2004. The Veteran perfected an appeal from that decision as to the disability rating assigned. In September 2008 the Board remanded the case to the RO for further development. In a February 2009 rating decision, the RO granted a temporary total (100 percent) rating for a period of convalescence from December 3, 2008 to March 31, 2009; and continued a 20 percent disability rating effective from April 1, 2009, for the service-connected degenerative intervertebral disk disease of the lower lumbar spine. 38 C.F.R. § 4.30. The 100 percent rating assigned for the period from December 3, 2008 to March 31, 2009 based on surgical or other treatment necessitating convalescence is not part of the current appeal. The Board remanded the matter a second time in July 2009 for the purpose of further development, including obtaining a VA examination outside the period of convalescence from his surgery. Such has been completed and this matter is returned to the Board for further consideration. While the appeal was pending on remand status, the RO in an April 2011 decision granted a separate 10 percent rating for right leg radiculopathy as a neurological manifestation of the lumbar spine disorder, effective November 30, 2009. The RO also granted a 40 percent rating for the lumbar spine disorder effective December 7, 2010. As the Board must consider all potential neurological manifestations throughout the pendency of the appeal, as well as the staged increased rating for the lumbar spine disorder from initial entitlement, the Board has recharacterized the issues to reflect such consideration. FINDINGS OF FACT 1. For any period prior to December 3, 2008, the lumbar spine disability does not limit the Veteran's range of motion so much so that it even approaches a level consistent with forward flexion of the thoracolumbar spine 30 degrees or less; it does not result in favorable ankylosis of the entire thoracolumbar spine; there is no evidence of incapacitating episodes of 2 to 4 weeks duration in the past year. 2. As of April 1, 2009, favorable ankylosis of the thoracolumbar spine is shown. 3. For the period beginning no earlier than December 7, 2005 (excluding the period of entitlement to temporary total disability benefits from December 3, 2008 to March 31, 2009), radicular symptoms of the right lower extremity are shown to include subjective complaints of pain, tingling and numbness, and with objective evidence of episodes of slight weakness, diminished light touch and reduced reflexes, but no evidence of atrophy, or persistent sensory deficits, is equivalent to no more than mild incomplete paralysis of the sciatic nerve. 4. The Veteran's current radicular symptoms of the right lower extremity do not closely resemble a moderate incomplete paralysis of the sciatic nerve. 5. Resolving reasonable doubt in the Veteran's favor, the neurologic manifestations of the service-connected low back disability as of June 2, 2006 (excluding the period of entitlement to temporary total disability benefits from December 3, 2008 to March 31, 2009), include bowel incontinence approximating constant slight or occasional moderate leakage. CONCLUSIONS OF LAW 1. The criteria have not been met for the assignment of a rating in excess of 20 percent for the lumbar spine disorder for the period prior to December 3, 2008. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.20, 4.40, 4.45, 4.71a including Diagnostic Codes 5235-5243 (2010). 2. The criteria for the assignment of a 40 percent rating, and no higher, for the service-connected lumbar spine, are met as of April 1, 2009. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.20, 4.40, 4.45, 4.71a including Diagnostic Codes 5235-5243 (2010). 3. The criteria for the assignment of a 10 percent for the service-connected radicular symptoms of the right lower extremity are met as of December 7, 2005 (excluding the period of entitlement to temporary total disability benefits from December 3, 2008 to March 31, 2009). 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a including Diagnostic Code 8520 (2010). 4. The criteria for the assignment of a current rating in excess of 10 percent for the service-connected radicular symptoms of the right lower extremity are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.124a including Diagnostic Code 8520 (2010). 5. A 10 percent evaluation is warranted for bowel incontinence associated with service-connected lumbar spine disability as of June 2, 2006 (excluding the period of entitlement to temporary total disability benefits from December 3, 2008 to March 31, 2009). 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, General Rating Formula for Rating Diseases and Injuries of the Spine, Note (1), 4.114, Diagnostic Code 7332 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. See 73 FR 23353 (Apr. 30, 2008). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that a VA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the Veteran's claim for service connection was received in March 2004, and a duty to assist letter was sent in June 2004 prior to the October 2004 adjudication of this claim on the merits. This letter described the evidence necessary to substantiate a claim for service connection, the VA's responsibilities in obtaining information to assist the Veteran in completing his claim, and the Veteran's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007); Dingess, 19 Vet. App. at 491. Even so, in December 2008, February 2009, August 2009 and November 2009 post-rating letters, the Veteran was informed of what was needed to substantiate an increased rating for his back disorder. Thereafter, the claim was reviewed and a supplemental statement of the case (SSOC) was issued in March 2011. Hence, while some of this notice was provided after the initial rating action on appeal, the Veteran is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or an SSOC, is sufficient to cure a timing defect). Thus, any VCAA notice error in regard to the issues decided herein is deemed harmless and does not preclude appellate consideration of the matters decided on appeal. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful). VA has also made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A. The information and evidence currently associated with the claims file consist of the veteran's service treatment records, post-service private and VA medical treatment records, lay statements, and reports of VA examination. The veteran has not identified any other evidence that has not been obtained. Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A VA examination was conducted in December 2010, and included review of the claims folder and examination of the Veteran. For the above reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993); see also 38 C.F.R. § 20.1102 (2008) (harmless error). II. Increased Rating Lumbar Spine Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Under the General Rating Formula for Disabilities of the Spine, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 height warrants a 10 percent disability rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 warrants a 20 percent disability rating. Forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine warrants a 30 percent disability rating. Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating. Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5243, 5237 (2009)). 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 cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 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 cervical spine is 340 degrees and 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2008). Under Diagnostic Code 5243, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under Sec. 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. With incapacitating episodes having a total duration of at least six weeks during the past 12 months, rate at 60 percent; with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, rate at 40 percent; with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, rate at 20 percent; and with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months, rate at 10 percent. Note (1): For purposes of evaluations under 5243, an incapacitating episode is 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. Note (2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Disease and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Factual Background and Analysis Service connection for a lumbar spine disorder, classified as degenerative intervertebral disc disease was granted in an October 2004 rating that assigned a 20 percent initial rating. He has appealed this rating. While the appeal was pending, the RO has awarded service connection for radiculopathy for the right lower extremity with an initial 10 percent rating assigned from November 30, 2009, and increased the lumbar spine disorder to 40 percent disabling effective December 7, 2010. (This followed a grant of a temporary total disability for surgery from December 3, 2008 to April 1, 2009). The Veteran has continued his appeal for higher ratings for disability due to his back disorder. The report of a September 2004 VA examination revealed complaints of pain in the low back that radiated to the left leg with occasional numbness. The findings from an MRI in April 2001 were noted to show some degenerative disc disease from L3-4, L4-5 and L5-S1, and a small central disc protrusion. He was noted to have had no treatment for his back since his discharge from the service. He was noted to take medications of Soma, Vicodin and occasional Ibuprofen. He had no difficulty walking and used no assistive device. He did have difficulty pushing, pulling and lifting. He also had difficulty kneeling squatting and stooping. Standing was unaffected. He did have interrupted sleep from back pain. He had limited ability to climb stairs due to back pain. Bending at the waist did not bother him. He said it was worse when he comes up from the bent position. He had weekly flares with functional limits more apparent. He was noted to have had two incapacitating episodes of back pain over the past year, lasting 3-4 days associated with the constitutional symptoms with no pain on coughing or sneezing. Bowel and bladder was intact but he had some rectal pain over the past several months. He worked as a security guard after service but was now unemployed. Examination revealed he walked without a limp, disrobed easily and got on and off the table with ease. He had some slight tenderness to palpation of the lower lumbar paravertebral muscles without spasm or guarding. His range of motion was 45 degrees flexion, 10 degrees extension, 20 degrees lateral bending in both directions and 30 degrees rotation in both directions. He had 50 degrees positive straight leg raise bilaterally, with posterior pain of the thigh. He had no sensory or motor deficit in either lower extremity. Deep tendon reflexes were present and symmetrical bilaterally at trace in the lower extremities. He could heel toe walk without difficulty. There was no change of range of motion or pain pattern with repetitive motion. The diagnosis was degenerative intervertebral disc disease of the lower spine without evidence of radiculopathy. A September 2004 VA general examination also noted the presence of DJD of the lumbosacral spine and also noted that sexual activity was restricted due to back pain, although he could have an erection. He had some slight tenderness of the lumbar spine. The Veteran submitted a November 2004 statement attached to his notice of disagreement, saying he had MRI's ordered due to his complaints of pain down both legs ending at the toes. He reported repetitive use of the stairs caused pain down the back of his legs and tingling to the toes. He indicated that he was asked by the doctor about toe drag which he said was not a problem, but he noted he occasionally dragged or caught his toe. He thought it was clumsiness on his part and now realized it was due to flare-ups of his back. VA records from 2004 to 2005 revealed that in December 2004 he was seen for inguinal hernia, with a history that included degenerative disc disease of the lumbosacral spine with daily pain, worse with lifting and bending. He had physical therapy four years ago that did not help, with pain sometimes radiating down both legs, left worse than right. He had no weakness except when he had pain that was severe. Typically his pain was 3-4/10 but sometimes went up to 8-9/10. His treatment was with the medications Ibuprofen, and sometimes Vicodin when the Ibuprofen did not work. He tried to walk regularly and recently went hunting, but his back did limit his activities. Examination revealed loss of motion. He was assessed with back pain. A January 2005 record revealed identical history, findings and diagnosis as in December 2004. In May 2005 he was noted to report worsening back pain with his pain level increased to 4-5/10 from the usual 2-3/10. It tended to begin in the back and radiate into one or both ankles. He also had episodes of hip pain mostly on the right that was brief and did not necessary correspond with his back pain. He reported occasional episodes of stumbling which he thought might be from dragging his toes. There were no bowel or bladder symptoms or leg weakness. Examination was significant only for some tenderness over L3, and some palpable muscle spasms in the right paravertebral muscles. Neurologically his reflexes were intact and he could heel-toe walk without problems. He was assessed with exacerbation of chronic low back pain and questionable radicular symptoms. Plans included physical therapy and MRI. On follow-up in June 2005, his back pain had worsened and was interfering with sleep. He went to one physical therapy session and found it did not help. He declined TENS therapy as he had previously used it without long term benefit. He was assessed with chronic low back pain with possible significant myelopathy. In July 2005 his back pain persisted, but he was noted to be seeing a private doctor who had done a MRI. In October 2005 he was noted to have had physical therapy for his back which was not helpful, with recent MRI from a private doctor that did not show disc herniation but some DJD. Examination revealed good range of motion of the back with pain at the lower lumbar to upper sacral area. He had no spasm and reflexes were 2+, his strength was 5/5 and sensation was intact. He was assessed with DJD lumbar spine with chronic back pain. He wanted a referral to the back clinic. In November 2005 he was noted to persist with numbness, paresthesias and burning going down the bilateral inguinal areas, buttocks and legs, but with left side greater than right. He was noted to have stopped physical therapy in July 2005 after his physical therapist refused further treatment following an incident of his leg giving out and numbness in both limbs during a treatment session, with complete resolution after a few minutes. He was noted on examination to have mild spinal tenderness, but no muscle spasms. His range of motion of the lumbar spine was slightly decreased in flexion and extension with the pain reproducing itself in the left side of his back and legs. His gait and stride were normal and both lower extremities had normal findings on testing of muscle strength and sensation. MRI findings from an outside doctor were reviewed and showed apparent multilevel degenerative disc disease from L4 through S1, but no apparent nerve impingement. He was assessed with chronic low back pain and sciatica. Of note, plans were made for him to start taking Neurontin for his lower limb complaints of paresthesias and numbness. A December 7, 2005 VA assessment for conservative care reveals that he was followed up for his lumbar symptoms following the MRI which showed the possible right sided radiculopathy at L5, and was noted to have persistent complaints of numbness and paresthesias down both lower extremities, but was mainly in the right side. He was noted to be working in a managerial position at a clinic, but was hoping to find a more sedentary position. His lumbar spine examination revealed tenderness at L4-5, with range of motion of 90 degrees flexion, 10 degrees extension, and "good" side bending and rotation bilaterally. He did have minimal tightness on bending to the left. His muscle strength was normal 5/5 throughout except for bilateral hip flexors, dorsiflexion and plantar flexion which were all 4/5. He was grossly intact to light touch and had normal tone without clonus. He had diminished deep tendon reflexes which were 2/4 on the left and 1+/4 on the right. He had positive straight leg raising bilaterally. He was assessed with chronic low back pain likely chronic L5 radiculpathy on the right. Treatment plans, including spinal injections, physical therapy and increasing his neurontin dosage were noted. Also in December 2005, an electrodiagnostic report gave an impression of findings suggestive of possible right sided timothy82@example.net. The history behind this report was of low back pain with some radiation down both lower extremities but worse in the left leg. He had constant, sharp back pain about 3/10 in intensity and some numbness mainly involving the right toes and bilateral lower extremity weakness with right toe dragging reported. Rest improved his symptoms and standing and walking worsened them. The examination of the lower extremities pursuant to testing showed no evidence of fasciculation's or wasting but he had tight left hamstrings and motor weakness measured in both lower extremities, more so on the left. His sensory to light touch was noted to be grossly intact and deep tendon reflexes were normal bilaterally. In December 2005 he was seen for physical therapy and TENS evaluation and was noted to have pain at a 3/10 level prior to his session. Other records from December 2005 were noted to include the Veteran's reports of dragging his right toe when walking on carpet whenever his symptoms flared, as well as a few episodes of either leg buckling when standing. He continued to have sleep disturbance due to pain. His pain continued to be dull and constant in his lower back, with radicular pain involving both hips going completely down through both lower extremities to the feet. He also reported occasional sharp pain in his groin followed by numbness. However he was negative for having coughs or sneezing aggravating his symptoms and no bowel or bladder symptoms. He also denied sexual dysfunction. He continued to hunt and fish as activities. His functional impairment was noted to involve bending to tie his shoes, and he avoided heavy lifting. His examination was significant for showing lumbar tenderness, increased lumbar lordosis, anterior pelvic tilt, absent lumbar lateral shift and his pelvis was higher on the right with hip flexor tightness. His range of motion was normal for both legs, and limited for the lumbar spine with a standing flexion which was moderately limited. There was only minimal limitation of left rotation and on left and right side bending. He had moderate limitation on right rotation. His strength was full except for bilateral hip extension which was 4/5. He had some diminished reflexes of 2+/4 on patellar tendon and 1+/4 on Achilles tendon bilaterally. His sensation was symmetrical and intact to light touch in both lower extremities. Again his gait was noted to be unremarkable and he could heel-toe walk. VA records from 2006 show persistent symptoms of lumbar spine pain and radiculopathy. A January 2006 record did show that his range of motion of the lumbar spine was 75 degrees flexion, and 20 degrees extension and bilateral side bending, with normal gait, full 5/5 muscle strength and intact sensation bilaterally. In March 2006 he reported pain levels at a 7/10 with occasional burning sensation down both legs and stabbing and pins/needles sensation in both feet. Examination was negative for tenderness to palpation or postural abnormalities. His range of motion was 75 degrees flexion, 15-20 degrees extension, and 20 degrees bilateral side bending. His gait was normal and muscle strength was full 5/5 except for a 4+/5 on knee flexion and extension. He had positive straight leg raises of 55 degrees on the right and 45 degrees on the left. He was assessed with chronic low back pain and bilateral radiculopathy with plans for nerve blocks made. In April 2006 a doctor expressed concerns about the Veteran's sphincter control not being as good as it should be for his age. In June 2006 he cited back pain, incontinence and bilateral lower extremity pain worsened over the past year. He had intermittent relief with nerve blocks. His pain radiated not only down both legs to his feet but also around the groin, penis, scrotum and perianal region. He reported bowel and bladder symptoms with the bladder symptoms described as not quite knowing when he was finished voiding with some dribbling. His bowel symptoms were of not having complete control with some soiling of his underwear and occasionally not feeling like he has complete control when defecating. However his strength was full 5/5 throughout, reflexes were equal and sensation was intact to touch through the lower extremities, buttocks, scrotal and perianal area. He was assessed with multiple complaints which appear referable to multiple sacral nerve root involvement. However the MRI did not show pathology that would yield extensive sacral involvement. In another June 2006 record, he was seen at the pain clinic for sharp radicular pain with radiculopathy confirmed by EMG. Again his strength, reflexes and sensation were intact, as noted in the prior June 2006 record. He had normal sphincter tone with good voluntary contractions. He was assessed with multiple complaints that appeared referable to multiple sacral nerve root involvement. Again the MRI findings were noted to not show findings consistent with his symptoms. He was recommended to be seen by a urologist for an evaluation of incontinence. He did have some lumbar disc pathology that could be contributing to his pain to some extent. An August 2006 MRI of the lumbar spine confirmed mild degenerative disc disease without any significant stenosis and mild bilateral neuroforaminal timothy82@example.net. VA records from 2007 include X-rays from April 2007 confirming the presence of degenerative disease in the lumbar spine and severe facet arthropathy at L5-S1 with significant neural foraminal stenosis. In May 2007 he had long standing chronic low back pain, worse over the past several years. His pain was still noted to shoot down both legs, into the middle of his feet, but he also had pain going into his groin, penis and scrotum. He also reported bladder incontinence, described as not quite knowing when he is finished voiding, with dribbling. He also reported bowel incontinence described as not having complete control and sometimes soiling his underwear. In June 2007 he reported the pain at a level of 7-8/10 and he had to force himself through a day of work. He could not do anything more than lie down once he got home. The symptoms continued to radiate down both lower extremities. His wife accompanied him at the visit and reported his knees sometimes buckle and he always walks to the right. His marital intimacy also diminished greatly due to back pain. Examination revealed tenderness to palpation of the lower thoracic and entire lumbar spine and bilateral positive straight leg raise. In October 2007 he was changed to a different medication (Pregabilin) for lumbar radiculopathy as he was not responding to opiates, injections or chiropractic care, and could not tolerate gabapentin. In November 2007 he was noted to have some degree of "foot slap" and wanted ankle braces. He also had pain in the ankles and rare dragging of the right foot. Also in November 2007 the Veteran reported having developed severe uncontrolled shaking of the left leg and slight tremors over the rest of his body. He was on a prescription (Pregabilin) which had anti seizure properties, with an increased risk of seizure if stopped suddenly. He also reported an episode of sharp toe pain radiating from his back. Examination revealed no remarkable neurological findings except that deep tendon reflexes could only be gotten from the left biceps. He was assessed with tremor of leg, which was a one time event in the setting of normal examination occurring in the setting of decreased Pregabilin. The possibilities included other causes such as hypoglycemia or a seizure disorder unmasked by the abruptly reduced dosage of Pregabilin. However the possibility of it being triggered by local irritation of the L5 nerve root or some degree of denervation from radiculopathy was not dismissed although the examination was not overly concerning for this as a cause. VA records from 2008 reveal that he continued with symptoms despite having physical therapy, chiropractic treatment and nerve blocks and indicate significant symptoms. A January 2008 neurosurgery note revealed he was seen for consult for symptoms of fecal soiling, some urinary dysfunction and L5-S1 radiculopathy and low back pain. The back pain was noted for the past four years but the sphincter symptoms were only 4-6 weeks old. The MRI findings were noted to show diffuse disc bulges and a prominent central timothy82@example.net. An April 2008 note revealed that his low back pain was constant at a 6/10 level with radiation into both legs aggravated by any activity done to excess. He was noted to have a rigid upright posture through the examination. He was also tender in the L4 through sacrum level. His strength was grossly intact and symmetrical bilaterally. He was assessed with symptoms consistent with lumbosacral disc disease and was recommended to have traction therapy. Other records from April 2008 also showed some mild flattening of the lordotic curvature of the lumbar spine and tenderness in the lower segments of the lumbar spine, but with muscle strength 5/5 throughout, and no obvious sensory deficits. His reflexes were equal at 2+ in the quadriceps and 1+ of triceps bilaterally. Also in April 2008 a private MRI of the lumbar spine revealed minimal broad based disc bulging from L3-4, L4-5 and an extruded disc at L5-S1 causing minimal extrinsic pressure on the thecal sac and timothy82@example.net. Private records from 2008 reveal that in May 2008 he was recommended to undergo L5-S1 surgery for his symptoms, as he had failed all other modalities of treatment. He was noted on examination to have ankle jerks decreased bilaterally to about trace. However he had no difficulty walking on toes and heels, no sensory deficit and knee jerks were 1 to 2+. He did have positive straight leg raise with pain in the left hip on right leg elevation and left thigh pain on left leg elevation. He was able to bend forward with his finger tips eight inches above the floor. In December 2008, he underwent a bilateral hemilaminectomy, medial fascectomy and discectomy at L4-5 and L5-S1 and a fusion with autograph, allograft and pedicle screw fixation at L4, L5 and S1. The diagnosis for which the surgery was done was for discogenic pain at L4-5 and L5-S1. The Veteran was granted a temporary total disability rating effective December 3, 2008 to March 31, 2009 via an April 2011 rating. A February 2009 VA examination noted that the Veteran had recently underwent surgery in December 2008, and that since the surgery which included pedicle screw fixation described as extending from L4 to S1, his pain had considerably subsided and he no longer had any leg pain either. The Veteran also reported that the numbness and motor weakness of his legs had subsided since the surgery was done. He was noted to be still using a molded fiberglass brace to stabilize the spine, and his range of motion was markedly restricted, plus his daily activities were markedly impaired, since the recent surgery. The examiner noted that he was essentially still in the immediate postoperative period and should be able to improve his function. As this examination was done during such period of recovery from surgery, and at a time wherein he was still receiving a temporary 100 percent rating, the findings of physical and functional limitations from this examination are not relevant to the appeal. However it is noted that he had no evidence of frank neuropathy or radiculopathy of either extremity following his surgery. The diagnosis is pertinent in that it diagnosed him with status post lumbar pedicle screw fixation from L4 to S1 with apparent good results. Private records from April and May 2009 reveal that in April 2009 the Veteran was feeling generally well. A May 2009 note indicated that 6 months post surgery he still had numbness in his last 3 toes. VA records indicated that in August 2009, the Veteran had a heart attack. No further details were provided. A December 2009 report of contact revealed the Veteran reported having a heart attack shortly after receiving a letter from the VA in August 2009. In December 2010 the Veteran underwent a VA examination which included detailed neurological examination, and claims file review. His medical history and records were reviewed, and of note his history included that of an embolic CVA (stroke) in August 2009. The examiner noted that a November 2009 record (not currently in the claims folder, but recited by the examiner), detailed rehabilitation following the stroke, with pertinent findings of sensation chronically impaired in the right lower extremity, but no other significant abnormalities of the strength or sensation of the extremities. A review of systems revealed no urinary incontinence, urgency, frequency or retention requiring catheterization. He did have fecal incontinence which was moderate but required no pads. He also had erectile dysfunction, plus numbness and paresthesias. There was no leg or foot weakness or falls. He did have unsteadiness. The etiology of these symptoms was deemed not related to his service connected lumbar spine disability. The reasoning was that surgery did not improve these symptoms as related to his history of his degenerative changes to the lumbar spine. He was noted to have difficulty with erections most the time with no diagnosis after medical evaluation. He did have numbness of the right foot of 2-5 numbness including the lateral heel, posterior, just below the knee level. There was no groin or perianal numbness. He did have unsteadiness due to decreased sensation of his weight and contact of the right foot to the ground. Other symptoms included history of spasm. He had no history of incapacitating episodes in the past year due to his spine disease. He had no limits on walking but did on running due to the loss of right foot sensitivity which caused balance loss. The examination noted that his posture and head position were normal and that there were no abnormal spinal curvatures except for the finding of lumbar flattening. He was noted to have a thoracolumbar spine ankylosis, with the extent of it in the neutral position. This was due to the L5-S1 fusion. He had no spasm, atrophy, guarding, pain on motion, tenderness or weakness of the lumbar spine. There was also no such findings shown to result in an abnormal gait or abnormal spinal control. While range of motion was recorded, and showed severe limited motion, with flexion only to 21 degrees, it is not relevant in light of the finding of an ankylosis that was neutral. Reflexes were normal except in the right lower extremity which was abnormal primarily in the S1-2 dermatome, and right bilateral malleolus. His position sense of the right lower extremity was decreased. The right big toe was noted to be where the abnormality was located. He also had decreased pain or pinprick behind the proximal calf, lateral leg, lateral dorsal foot and digits 2-4 on the right. Detailed motor examination noted 5/5 strength throughout the left lower extremity and right knee extension, plantar flexion and great toe extension. He had decreased 4/5 right hip flexion and extension, right knee flexion and ankle dorsiflexion. He was also noted to have "ratchedy giveaway" through the right lower extremity. However his muscle tone was normal, without atrophy. He did have altered motion when going from sitting to standing due to right foot impaired sensation. This interfered with sense of position and placement. The examiner noted the Veteran's employment history of working full time as a counselor, and was noted to have lost 7 months in the past 12 month period due to having a myocardial infarction and cerebrovascular accident (CVA). He was diagnosed with intervertebral disc disease of the lower lumbar spine. There were no affects on his occupation, but he did have affects on his daily activity, with basic activities of daily living okay, but he needed help putting on and removing his shoes, due to limitations from his spine. He also could not run and his lifting was impaired. He also had difficulty going up and down stairs and needed additional lighting at night to assist in safe mobility. The examiner opined that the Veteran's issues with bowel incontinence or leaking were not related to his spinal problems but were more than likely related to his history of CVA. He was noted to have gait abnormalities with decreased rapid motions of the right leg and hip, and altered gait pattern and altered foot placement due to his radiculopathy symptoms. He was diagnosed with right lower limb radiculopathy with associated problem of sciatic neuropathy. This too had no effects on his usual occupation. This did have an effect on his activities of daily living as this was a manifestation of his spine disease, with the effects recited in the spine exam. He was also diagnosed with right lower limb residuals from his CVA, but the examiner noted that the manifestations were similar to those stemming from his lumbar spine degenerative disc disease. It would be practically improbable to separate the symptoms from the service connected conditions and the CVA on his right leg function. The examiner concluded that based on the timeline of his diagnoses, his primary diagnosis was consistent with intervertebral disc disease of the lumbosacral spine. The overall severity of the right lower limb function was deemed mild in regard to function, but was not evidently affecting his occupational duties. The involvement of the radiculopathy was in the L5-S1 and S2 distribution of his sciatic nerve. Regarding his lumbar spine, the examiner deemed the severity of the decreased motion was moderate. Again there were no incapacitating episodes or flare-ups related to the lumbosacral spine evident. There was no evidence of pain, excess fatigability, incoordination and weakness as related to his symptoms of pain, stiffness, guarding or abnormal gait. A. Analysis based on orthopedic symptoms and incapacitating episodes Based on a review of the foregoing, the Board finds that an initial rating in excess of 20 percent disabling for his lumbar spine disorder is not warranted prior to the time upon which he was granted a temporary 100 percent rating for surgery on December 3, 2008. However, as of April 1, 2009, which is the day after his temporary 100 percent rating ended, the 40 percent rating is warranted based on ankylosis of the lumbar spine brought about by the pedicle screw fixation surgery in December 2008. With regard to the initial 20 percent rating, the Veteran's range of motion of the lumbar spine was not shown to result in forward flexion of 30 degrees or less, nor did it equal that of a favorable ankylosis of the thoracolumbar spine. Rather his flexion was shown to result in no problem bending at the waist in the September 2004 VA examination, with 45 degrees flexion noted, and the motion in all other directions was not limited to such an extent that it could be construed as equal to ankylosis. Likewise, the records from 2004 and 2005 documented some decreased motion, but no indication of such limitations that would warrant a 40 percent rating. In October 2005, his motion was deemed only to be slightly decreased in flexion. In December 2005, his flexion was as high as 90 degrees, with the only noted restriction involving bending to tie his shoes. The records from 2005 up to the time of his surgery in December 2008 are silent for any evidence of motion restrictions that would warrant a 40 percent rating. With regard to incapacitating episodes, from initial entitlement up to his December 3, 2008 surgery, the Board finds that there is no evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. To the contrary, the September 2004 VA examination only reported two incapacitating episodes of the past year, each lasting only 3-4 days. The subsequent treatment records from 2005 to 2008 are silent for any instances of incapacitating episodes requiring doctor prescribed bedrest. In fact, in June 2007, while he reported severe pain, he was noted to continue to force himself to go to work. Based on the foregoing, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran's degenerative spine disorder from initial entitlement up to the time his entitlement to temporary total rating began on December 3, 2008. As of April 1, 2009 the Board finds that
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