Citation Nr: 1004100 Decision Date: 01/27/10 Archive Date: 02/16/10 DOCKET NO. 05-05 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for post-traumatic arthritis of the lumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active military service from July 1943 to March 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for post-traumatic arthritis of the lumbar spine, and assigned an initial 10 percent evaluation, effective from September 30, 2003. This matter was previously before the Board in April 2008, at which time it was remanded to the RO for additional development. The requested development has been undertaken and the case has since been returned to the Board for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's disability of the lumbar spine is manifested by degenerative joint disease; it is not manifested by flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or a combined range of motion of no 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. 2. There is no objective evidence of neurological manifestations, including bladder impairment, associated with the disability of the lumbar spine. 3. There is no evidence the Veteran's disability of the lumbar spine has resulted in incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during any year within the applicable appeal period. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for post-traumatic arthritis of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5237, 5243 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters: Duties to Notify & to Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements) With respect to the increased initial rating claim for a low back disorder, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in September 2003 (addressing the elements of service connection prior to the grant of service connection for a low back disorder) and again in January 2005, May 2008, and September 2009 (addressing the elements pertinent to the increased rating claim). Indeed, as this is an appeal arising from a grant of service connection, the notice that was provided before service connection was granted was legally sufficient and VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) To the extent that the claim on appeal includes a component of increased (staged) ratings, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009). This notice was provided to the Veteran in the May 2008 and September 2009 letters. Thereafter, the RO readjudicated the claim in a Supplemental Statement of the Case issued in November 2009. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). The Board concludes that during the administrative appeal process, the Veteran was provided the information necessary such that the purposes of the notification have been met. Vazquez-Flores, 22 Vet. App. at 49. Under the VCAA, VA also has a duty to assist the Veteran in the development of a claim. This includes assisting the Veteran in procuring service treatment records (STRs) and other relevant treatment records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, VA obtained the Veteran's service treatment records (STRs) and VA treatment records pertinent to the years after service. VA examinations were conducted in 2004 and 2009. The file also contains statements and contentions made by the Veteran and his representative. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Factual Background The Veteran filed an original service connection claim for a low back disability in September 2003. By rating action of March 2004, service connection was granted for post-traumatic arthritis of the lumbar spine, for which an initial 10 percent evaluation was assigned effective from September 30, 2003. The grant of service connection was based in large part on (STRs) which reflect that lumbosacral strain was diagnosed in 1946, while the Veteran was in service; and findings made upon VA examination of May 2004. The May 2004 VA examination report reflects that the Veteran reported having progressive lower back pain over the years since the original injury in 1946, with complaints of limitation upon over-exertion or lifting heavy objects. Examination of the lumbosacral spine revealed loss of lumbar lordosis. Range of motion testing revealed flexion from 0 to 80 degrees. There was no indication of spasm or tenderness of the lumbosacral muscles. Neurological evaluation was normal. X-ray films revealed moderate degenerative changes. The diagnoses included degenerative joint disease (DJD) of the lumbosacral spine with early ankylosing spondylitis and mild loss of function. In statements provided in October 2004 and February 2005, the Veteran indicated that he had severe back pain and could not bend far without pain. The Veteran also reported that his VA doctor had prescribed medication for treatment of pain and muscle spasms. VA records dated from 2005 to 2008 are essentially negative for any documentation of symptoms or clinical findings relating to the low back. A VA examination was conducted in September 2009 and the claims folder was reviewed. The Veteran symptoms were documented as including intermittent, moderate back pain, decreased motion, and intermittent stiffness and spasms. He indicated that he took Tylenol for treatment of symptoms. The Veteran reported having a flare-up 6 months prior to the examination while cleaning the yard and picking up limbs. He reported that he had not experienced any flare-ups since that time. The report stated that the Veteran used a cane and could stand for about 5 minutes and could walk less than 50 feet. The report reflects that the Veteran stated that he had a history of surgery or hospitalization due to back pain and spasms (although there is no indication of this in the clinical evidence on file). The examiner indicated that there had been no incapacitating episodes of spinal disease. It was noted that the Veteran was in a wheelchair, but was able to walk short distances with a cane. Physical examination of the spine revealed that posture was normal and there was no indication of any abnormal spinal curvatures (including kyphosis, lordosis, reverse lordosis, flattening and scoliosis). Range of motion testing revealed flexion from 0 to 85 degrees; extension from 0 to 10 degrees, right and left rotation from 0 to 20 degrees; and lateral flexion bilaterally from 0 to 20 degrees. The combined range of motion was 175 degrees. The examiner noted that there was evidence of pain on both active and repetitive motion, but indicated that there was no additional limitation of motion upon repetitive motion. A diagnosis of lumbar spine degenerative disc disease (DDD) with L1-L2 wedge compression (based on examination and X-ray films findings) was made. The examiner indicated that the low back disability produced limitation of motion and pain, to include that demonstrated upon range of motion testing. The VA examination report indicated that in addition to the low back symptomatology, the Veteran's manifestations included: urinary incontinence, urinary frequency, nocturia, leg/foot weakness and unsteadiness. The examiner opined that none of these manifestations were associated with the low back disorder, reasoning that the Veteran had a history of bladder cancer with urinary incontinence, as well as a history of falls occurring twice a month. Analysis The Veteran's claim for a higher evaluation for his low back disorder was placed in appellate status by his disagreement with the initial rating award. In such circumstances, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings, as will be further explained herein. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. 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 considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). 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, as is the case with the present appeal. 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. More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). See also 38 C.F.R. § 4.14 (2009) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). In considering the Veteran's claim, the Board notes that the regulations for rating disabilities of the spine were twice revised, effective September 23, 2002; and effective September 26, 2003. See 67 Fed. Reg. 54345 (Aug. 22, 2002); 68 Fed. Reg. 51454 (Aug. 27, 2003). Inasmuch as the Veteran's currently assigned effective date for the grant of service connection for the low back disorder is subsequent to both of these dates (September 30, 2003), only the revised regulations/regulatory criteria are applicable to his claim, as explained below. The Veteran contends the currently assigned initial evaluation does not accurately reflect the severity of his disability. For the entirety of the appeal period a 10 percent evaluation has been assigned for post-traumatic arthritis of the lumbar spine (a low back disorder) pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5010 addresses the issue of arthritis due to trauma, substantiated by x-ray findings, which is to be rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2009). Degenerative arthritis established by X-ray findings will be evaluated on the basis of limitation of motion of the specific joint or joints involved. Diagnostic Code 5003. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are combined, not added, under Diagnostic Code 5003. The Schedule for Rating Criteria indicates that disabilities of the spine under Diagnostic Codes 5235 to 5243 will be evaluated under a General Rating Formula for Diseases and Injuries of the Spine. Diagnostic Code 5237 is used for the evaluation of lumbosacral strain. The General Rating Formula assigns evaluations with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of the injury or disease. Under this formula, a 10 percent evaluation is for assignment with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 the height. A 20 percent evaluation is for assignment when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or with a combined range of motion 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 for assignment when forward flexion of the thoracolumbar spine is 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is for assignment upon a showing of unfavorable ankylosis of the entire thoracolumbar spine. A note after the General Rating Formula for Diseases and Injuries of the Spine specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate Diagnostic Code. Note (2) to the General Rating Formula explains that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The Board must also consider a Veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. 38 C.F.R. §§ 4.40, 4.45; See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). Another Diagnostic Code that could be applied in this case is Diagnostic Code 5243, used to evaluate intervertebral disc syndrome. Under Diagnostic Code 5243, intervertebral disc syndrome is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based upon Incapacitating Episodes, whichever results in the higher rating. The Formula for Rating Intervertebral Disc Syndrome provides for a 10 percent evaluation was for assignment with incapacitating episodes having a total duration of at least one week, but less than two weeks during the past twelve months; a 20 percent evaluation was assigned for incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past twelve months; a 40 percent evaluation was assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past twelve months; and a 60 percent evaluation was assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. A note following the Diagnostic Code defines an incapacitating episode 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, note 1. Note 2 provides for separate evaluations if intervertebral disc syndrome is present in more than one spinal segment if the effects are distinct. Evaluating the evidence in light of the above rating criteria, the Board must conclude that an increased initial evaluation is not warranted, nor are any staged ratings. Specifically, there is no evidence the Veteran's forward flexion is greater than 30 degrees but not greater than 60 degrees. Rather, VA examinations conducted in 2004 and 2009 document a range of flexion of between 80 and 85 degrees, supporting the currently assigned 10 percent evaluation. Similarly, the combined range of motion of the lumbar spine documented by medical evidence dated in 2009 was in excess of the 120 degrees required to support the assignment of a 20 percent evaluation; full range of motion testing was not undertaken during the 2004 VA examination. Nor is there any objective evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or kyphosis. In fact, examination reports dated in 2004 and 2009 indicate that there was no indication of any of the aforementioned manifestations (although there was some indication of loss of lumbar lordosis in 2004 on examination). However, the 2009 examination report specifically indicated and clarified that there was no evidence of muscle spasm, local tenderness or guarding, severe enough to be productive of abnormal gait or spinal contour. The Board has considered whether an increased evaluation is warranted under another Diagnostic Code, including under the criteria for intervertebral disc syndrome. In order to receive the next higher 20 percent rating for intervertebral disc syndrome, the evidence must show incapacitating episodes having a total duration of at least two weeks but less than four weeks during the preceding 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2009). However, during the appeal period, the evidence does not reflect that the Veteran's low back disorder has been productive of essentially any incapacitating episodes requiring bed rest prescribed by a physician and treatment prescribed by a physician, as confirmed by a examination report dated in 2009. In fact, in that report, the Veteran reported that he had not had a flare-up for 6 months, and even then, there was no indication that it required treatment or bed rest prescribed by a physician. As such, an increased evaluation under Diagnostic Code 5243 is not warranted. The Veteran is also not entitled to a separate compensable disability rating for limitation of motion of the lumbar spine due to DJD/DDD, which is rated as degenerative arthritis under Diagnostic Codes 5003-5010. While DJD was diagnosed in 2004, as was DDD in 2009, evaluations for distinct disabilities resulting from the same injury may only be separately evaluated as long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban, 6 Vet. App. at 261- 62. As explained earlier, ratings for arthritis are generally based upon demonstrable limitation of motion, which in this case has been considered and compensated under the 10 percent disability rating already assigned. To assign a separate or additional disability rating for limitation of the motion of the lumbar spine due to DDD or DJD is similarly not permitted under the criteria. See 38 C.F.R. §§ 4.14 and 4.71a, Diagnostic Code 5003 and following notes. The Board has also considered whether an increased evaluation is warranted based upon the granting of a separate neurological disability related to the lumbar spine. In this regard, neurological evaluation conducted in 2004 was entirely normal. When examined in 2009, the examiner indicated that there was no evidence of paresthesias and noted that indications of leg and foot weakness were unrelated to the Veteran's low back disorder. The Board also observes that the 2009 examination report referenced symptoms of bladder impairment which the VA examiner indicated were unrelated to the low back disorder. Accordingly, there is no basis for the assignment of a separate evaluation for any neurological impairment related to the low back disorder, as no such manifestations have been shown during the appeal period. The evidence reflects the Veteran has consistently complained of pain and limitation of motion associated with his lumbar spine disability and has described restriction of activities, such as bending. The records indicate the Veteran uses Tylenol for treatment of his symptoms. VA examinations on file have considered the effects of painful motion. For example, in 2009, a VA examiner tested the effects of repetitive motion and found that repeated motion did not result in any additional limitation of motion or functional impairment. Although the Board is required to consider the effect of pain when making a rating determination, which has been done in this case, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The currently assigned 10 percent evaluation contemplates the effects of the Veteran's complaints of pain and fatigue on activity and motion. Therefore, an increased evaluation based solely on pain is not warranted. 38 C.F.R. § 4.45, 4.71a, Diagnostic Code 5237; DeLuca v. Brown, 8 Vet. App. 202 (1995) The Veteran is certainly competent to report his symptoms. See generally Barr v. Nicholson, 21 Vet. App. 303 (2007) (veteran is competent to testify as to the continuity of symptomatology capable of lay observation). However, to the extent that he has stated that his service-connected low back disability warrants an initial evaluation in excess of 10 percent, the medical findings do not support his contentions. The Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals than to the Veteran's statements, provided in support of a claim for monetary benefits. Upon reviewing the longitudinal record in this case, we find that at no time during the appeal period has the Veteran's low back disorder been more disabling than as reflected by the 10 percent evaluation initially assigned. See Fenderson and Hart, supra. Accordingly, there is no basis for the assignment of increased, staged or separate ratings in this case. As there is a preponderance of the evidence against the Veteran's claim, the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Accordingly, the appeal is denied. Extraschedular Considerations In a recent case, the United States Court of Appeals for Veterans Claims (Court) clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Veteran's manifestations of his service-connected low back disability cause impairment that is contemplated by the rating criteria. Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. Referral for consideration of extraschedular ratings is, therefore, not warranted. The Court of Appeals for Veterans Claims (CAVC) has recently held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In the instant case, the holding of Rice is inapplicable since the evidence of record does not demonstrate that the Veteran has been rendered unemployable due solely to his service-connected low back disorder, nor have the Veteran or his representative so alleged. Thus, at this point, there is no cogent evidence of unemployability and entitlement to increased compensation based on TDIU is not warranted. ORDER An initial evaluation in excess of 10 percent for post- traumatic arthritis of the lumbar spine is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs