Citation Nr: 0810265 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-40 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a rating in excess of 10 percent for lumbosacral strain with degenerative changes. 2. Entitlement to an increase in the ratings for right shoulder strain, currently assigned "staged" ratings of 0 percent prior to April 18, 2005, and 10 percent from that date. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1982 to October 2003. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for lumbosacral strain with degenerative changes, and for right shoulder strain, each rated noncompensable, effective November 1, 2003. In August 2006, the RO increased the rating for lumbosacral strain to10 percent, effective from November 1, 2003 (i.e., for the entire appeal period), and increased the rating for right shoulder strain to 10 percent, effective April 18, 2005. The matter of the rating for the right shoulder disability is characterized to reflect that "staged" ratings are assigned. The veteran has expressed dissatisfaction with the ratings of both disabilities, and the ratings of both disabilities, including both "stages" of the right shoulder rating, remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Throughout the appeal period the veteran's service connected lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine to no less than 80 degrees; incapacitating episodes are not shown; and separately ratable neurological impairment is not shown; combined thoracolumbar ranges of motion to 120 degrees or less or muscle spasms are not shown. 2. Throughout the appeal period, the veteran's right shoulder strain has not been shown to be manifested by limitation of arm motion at the shoulder level; objective evidence of painful motion was first noted on VA examination on April 18, 2005. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for lumbosacral strain with degenerative changes is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.7, 4.71a, Codes 5237, 5242, 5243 (2007). 2. Initial "staged" ratings in excess of 0 percent prior to April 18, 2005 and/or in excess of 10 percent from that date are not warranted for the veteran's right shoulder strain. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.2, 4.6, 4.20, 4.40, 4.45, 4.59, 4.71a, Codes 5024, 5201 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act (VCAA) The VCAA describes VA's 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 VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the rating decision on appeal granted service connection for lumbosacral strain with degenerative changes and for right shoulder strain, and assigned initial ratings and effective dates, statutory notice had served its purpose and its application was no longer required. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The June 2004 statement of the case (SOC) properly provided notice on the downstream issues of increased initial ratings. (Notably, the veteran has not contested the effective dates assigned.) The SOC provided notice contemplated by the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008)(as applicable where the rating in question is the initial rating assigned with a grant of service connection). A March 2005 letter provided notice of what evidence was needed to establish higher ratings, of the veteran's and VA's responsibilities in claims development, and that he should submit any pertinent evidence in his possession. An August 2006 rating decision granted increased ratings. The claims were again readjudicated by a November 2007 supplemental SOC. Notice has been adequate. Regarding VA's duty to assist, the veteran was afforded VA examinations in September 2003, April 2005, and October 2007. Madigan Army Medical Center records identified by the veteran have been obtained. He has not identified any additional evidence pertinent to the claims. VA's assistance obligations are met. The veteran is not prejudiced by the Board's proceeding with appellate review. II. Factual Background Right shoulder impingement syndrome was noted during service in January 1990. The veteran was treated for low back pain beginning in September 1999. On VA examination in September 2003, the veteran reported that he had had no incapacitating episodes of back pain over the past 12 months. Back pain had not impacted his job or his ability to do outside activities to any significant degree. He continued to run 12 to 15 miles per week. On examination, he had a normal gait. No soft tissue swelling, point tenderness, or spasms were appreciated. The examiner described "full" painless thoracolumbar motion. Flexion was to 95 degrees; extension, 35 degrees; lateral bending, 45 degrees to the right; rotation, 35 degrees to each side. Neurological examination was unremarkable. The diagnosis was lumbosacral strain with degenerative changes, with minimal functional impairment. Examination of the right shoulder showed full painless motion, including 180 degrees of anterior flexion; and abduction and internal and external rotation to 90 degrees. The impression was right shoulder strain, episodic, currently asymptomatic, without current functional impairment. The veteran was seen at the Madigan Army Medical Center in September 2004 and December 2004 for complaints of low back pain. Lumbago was noted on both occasions. On VA examination in April 2005, the veteran reported that he had missed several days from work in the past year due to flare-ups of back pain. He used a treadmill once per week for approximately 20 minutes. On examination, he had normal gait. There were no muscle spasms. Forward flexion was 0 to 90 degrees; extension, 0 to 30 degrees; left and right lateral flexion 0 to 30 degrees; left and right lateral rotation 0 to 30 degrees. Left-sided motions produced mild discomfort in the right flank area, as did flexion from 60 degrees to 90 degrees; function was not additionally limited by pain, fatigue, weakness, or lack of endurance. Neurological examination was unremarkable and motor strength in the lower extremities was 5/5. The impression was degenerative disease of the lumbosacral spine, with mild functional impairment. At the April 2005 examination, the veteran reported that he had no restriction of right shoulder motion. He reported discomfort that caused him to use his left arm for some activities. On examination, inspection of the shoulder was grossly unremarkable. The examiner was able to reproduce discomfort in the right shoulder with abduction to 90 degrees. Prior to that, the examiner had done range of motion maneuvers, including: forward flexion, 180 degrees; anterior flexion, 180 degrees without pain; abduction discomfort was present from 160 to 180 degrees. Function was not additionally limited by pain, fatigue, weakness, and lack of endurance. The veteran was able to internally and externally rotate to 90 degrees with a mild amount of discomfort at the extreme of the arc in both planes. Motor strength of all muscle groups of the right upper extremity was 5/5. On the most recent VA examination in October 2007, the veteran reported burning back pain once per month, lasting for two weeks. The pain traveled to his buttocks and the front of his thigh, and was relieved by medication and limitation of activities. The spine condition did not cause incapacitation. On examination, there was no evidence of radiating pain on movement. There was no muscle spasm or tenderness. Straight leg raising was negative bilaterally. Pain-free ranges of motion were: flexion, to 80 degrees; extension, to 20 degrees; right and left lateral flexion, to 30 degrees; right and left rotation, to 30 degrees. Joint function of the spine was not further limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Neurological examination was within normal limits. At the October 2007 examination, the veteran reported right shoulder stiffness and loss of range of motion. He had shoulder pain approximately one day per week. On examination, there was no sign of edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement of the right shoulder. There was pain-free motion of 170 degrees flexion and 170 degrees abduction. External and internal rotation was to 90 degrees. Joint function of the right shoulder was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Right shoulder X-ray was negative. III. Legal Criteria and Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more of less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Where there is a question as to which of two evaluations apply, 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 U.S.C.A. § 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). With an initial rating assigned following a grant of service connection, as here, separate ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Lumbosacral Strain Lumbosacral strain and degenerative arthritis of the spine are rated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Codes 5237 and 5242. Intervertebral disc syndrome is rated under the general formula for rating diseases and injuries of the spine or based on incapacitating episodes (outlined below), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Code 5243. Under the general rating formula for rating diseases and injuries of the spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. The current 10 percent rating contemplates forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or if there is 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 the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateroflexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateroflexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 140 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurological 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 the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Code 5243 provides for intervertebral disc syndrome to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations, whichever method results in the higher rating. Note 1 following Code 5243 provides that 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 and that "chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note (2) provides: When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using criteria for the most appropriate neurologic diagnostic code or codes. Under Code 5243, a 10 percent evaluation is assigned for incapacitating episodes having a total duration of at least one week, but less than two weeks, during the past 12 months. A 20 percent evaluation is assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. A 40 percent rating is warranted for incapacitating episodes if such episodes had a total duration of at least four weeks but less than six weeks, during the past 12 months. A 60 percent (maximum) rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. The veteran's low back disability is rated under Code 5242 for degenerative arthritis of the spine. To warrant the next higher (20 percent) rating under Code 5242, it must be manifested by forward flexion of the thoracolumbar spine limited to 60 degrees or less; or, combined range of motion of the thoracolumbar spine not greater that 120 degrees; or muscle spasm or guarding sufficient to cause gait or spine contour impairment. The evidence of record does not show such manifestations at any time since November 1, 2003. Forward flexion was never limited to less than 80 degrees; combined ranges of motion of the thoracolumbar spine have consistently exceeded 200 degrees; and muscle spasms or guarding have not been clinically noted. See October 2007 VA examination report. As there have been no reported incapacitating episodes, a rating in excess of 10 percent on that basis under Code 5243 likewise is not warranted. Additional factors that could provide a basis for an increase have also been considered. However, it is not shown that the veteran has any functional loss beyond that being currently compensated. While VA examinations have noted the veteran's reports that repetitive use causes increases pain and limitation of motion, the rating assigned contemplates such degree of impairment. 38 C.F.R. §§4.40, 4.45, Deluca, supra. Furthermore, neurological findings have been normal. In summary, a rating in excess of 10 percent is not warranted for any period of time since November 1, 2003, under any applicable criteria. The preponderance of the evidence is against this claim, and it must be denied. Right Shoulder Strain The veteran's service connected right shoulder strain is currently rated under Codes 5024, 5201 (for tenosynovitis based on limitation of motion). Given the nature of the symptoms shown (mostly pain in the shoulder joint) the Board finds this analogous rating appropriate. 38 C.F.R. § 4.20, 4.71a. Under Code 5201, the next higher (20 percent) rating is warranted for limitation of arm motion at the shoulder level. See 38 C.F.R. § 4.71a, Code 5201. Such limitation is not shown. Notably, the currently assigned 10 percent rating is based on limitation due to painful motion; consequently, a higher rating based on limitation of motion/loss of function due to pain is not warranted. Nor is there any showing of compensable painful motion prior to April 18, 2005 that would warrant a 10 percent rating prior to that date. While the April 18, 2005 VA examination report noted objective findings of painful motion (leading to the 10 percent rating from that date), the September 2003 VA examination described the right shoulder as "asymptomatic". Prior to April 18, 2005, there was no objective evidence of right shoulder impairment that would warrant a compensable rating. ORDER A rating in excess of 10 percent for lumbosacral strain with degenerative changes is denied. An increase in the "staged" ratings (of 0 percent prior to April 18, 2005 and 10 percent from that date) for the veteran's right shoulder strain is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs