Citation Nr: 1004167 Decision Date: 01/28/10 Archive Date: 02/16/10 DOCKET NO. 06-11 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a rating in excess of 20 percent for degenerative disc disease at L4-5, L5-S1. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1979 to August 1980. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Buffalo Regional Office (RO) of the Department of Veterans Affairs (VA) that continued a 20 percent rating for degenerative disc disease at L4-5, L5-S1. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue addressed in this decision was obtained. 2. The Veteran's degenerative disc disease at L4-5, L5-S1 is not manifested by forward flexion of the thoracolumbar spine 30 degrees or less, any favorable ankylosis of the entire thoracolumbar spine, or intervertebral disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for degenerative disc disease at L4-5, L5-S1 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes (DCs) 5235 to 5243 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify & Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353- 23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in June 2005, prior to the date of the issuance of the appealed August 2005 rating decision. The Board further notes that, in March 2006, the Veteran was notified that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorders described by the Veteran. Additionally, he was afforded a VA examination in July 2005 that was fully adequate for the purposes of determining the severity of the Veteran's service-connected low back disorder. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. General Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board 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 following analysis in this decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. The rule against pyramiding, as set forth in 38 C.F.R. § 4.14, states that the evaluation of the same disability under various diagnoses is to avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Id. Both the use of manifestations not resulting from service- connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id. Where there is separate and distinct symptomatology of a single condition it should be separately rated. Where the symptomatology of a condition is duplicative or overlapping with symptomatology of another condition, it may not receive a separate evaluation. 38 C.F.R. §§ 4.14, 4.25; Esteban v. Brown, 6 Vet. App. 259 (1994). The Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Specific Legal Criteria- Disabilities of the Spine The General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a, provides: (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease 100% Unfavorable ankylosis of the entire spine; 50% Unfavorable ankylosis of the entire thoracolumbar spine; 40% 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; 20% 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; 10% 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 the height. 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 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 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 habits, 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. 5235 Vertebral fracture or dislocation, 5236 Sacroiliac injury and weakness, 5237 Lumbosacral or cervical strain, 5238 Spinal stenosis, 5239 Spondylolisthesis or segmental instability, 5240 Ankylosing spondylitis, 5241 Spinal fusion, 5242, Degenerative arthritis of the spine (see also diagnostic code 5003) Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25. 60% With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months; 40% With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; 20% With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; 10% With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; Note (1): For purposes of evaluations under diagnostic code 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 Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. See 38 C.F.R. § 4.71a, DCs 5235 to 5243 (2009). Standard of Review Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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. See 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Analysis The Veteran's service-connected degenerative disc disease at L4-5, L5-S1 is evaluated as 20 percent disabling, under the pertinent provisions for evaluating disease and injuries of the spine. He contends that his spine disability presents a greater degree of impairment due to the impact the disability has on his ability to seek gainful employment. The Board generally notes that VA treatment records, dated from January 2004 to January 2006 showed continued treatment for chronic low back pain. In conjunction with the current appeal, the Veteran underwent a VA spine examination in July 2005. On examination, he had complaints of pain in his low back. He indicated that he wore lumbosacral support and used a TENS unit. He reported that he had very severe limitations with his walking and could walk less than a block. He stated that he was not able to do any lifting, pushing, or pulling and that standing, squatting, stooping, or kneeling caused back pain. He reported that he was not able to drive and had difficulty with sleeping and using the stairs. He indicated that he had frequent flare-ups of back pain. It was noted that he did not have any totally incapacitating episodes over the past year and his bowel and bladder function were intact. Physical examination revealed the Veteran ambulated without a limp. He disrobed with some degree of difficulty. There were no gross deformities of the thoracolumbar spine. There was tenderness on palpation of the lower paravertebral musculature and both sacroiliac joints. He did not experience much discomfort on palpation of the upper and lower thoracic paravertebral musculature. Range of motions of studies revealed that flexion was to 35 degrees, extension was to 10 degrees, side bending was to 20 degrees, and rotation was to 30 degrees on each side. He moved through the ranges of motion with little difficulty, but complained of pain at the extremes of motion. After repetitive flexion and extension activity, there was no change in range of motion due to pain, weakness, or fatigability. Neurologic examination revealed straight-leg raising to 60 degrees on the left and 45 degrees on the right at which time he complained of back pain. There was no sensory or motor deficit of either lower extremity. Deep tendon reflexes of the lower extremities were present and symmetrical bilaterally +1. He would heel toe walk with difficulty, but was able to perform the maneuver. X-rays of the lumbar spine were normal, but there was thinning of disc spaces at the lumbodorsal junction. The diagnosis was degenerative intervertebral disc disease of the lumbar spine with no evidence of radiculopathy. Based on the foregoing, the Board concludes that an evaluation in excess of 20 percent for the Veteran's low back disability, under any of the applicable diagnostic criteria, is not warranted. In order to warrant an evaluation in excess of 20 percent, the Veteran must be diagnosed with intervertebral disc syndrome that is productive of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; or his disability must be productive of forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. In this case, the medical evidence does not support diagnoses of intervertebral disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, or any ankylosis of thoracolumbar spine; and range of motion test results on forward flexion for the thoracolumbar spine is greater than 30 degrees even with consideration of the DeLuca factors. See DeLuca, supra; see also 38 C.F.R. § 4.71a, DCs 5235 to 5243 (2009). The Board notes that symptoms such as pain experienced by the Veteran are contemplated by the criteria under Code 5242. Hence, the Veteran's overall low back symptomatology does not meet the criteria for at least the next higher rating of 40 percent. As the criteria for the next higher rating has not been met, it follows that the criteria for an even higher rating of 50 percent, likewise have not been met. Overall, the evidence does not support an evaluation in excess of 20 percent for degenerative disc disease at L4-5, S1 at any point throughout the appeal period, and the claim for that benefit must be denied. 38 C.F.R. §§ 4.3, 4.7; see also Hart, supra. The currently assigned 20 percent evaluation represents the impairment of earning capacity attributable to the service-connected low back condition. See 38 C.F.R. §§ 4.1, 4.10 (2009). The Board notes that due consideration has been given to the assignment of separate ratings for separate and distinct symptomatology of the Veteran's service-connected disability; however, the record does not support assigning separate ratings for additional symptoms associated with his low back strain with degenerative changes. See Esteban v. Brown, 6 Vet. App. 259 (1994). Extraschedular Considerations The Board has considered the Veteran's complaints that his low back disability has an impact on his ability to seek gainful employment. However, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the ratings provided by the rating schedule under Diagnostic Code 5242 appropriately reflects the disability level and symptomatology of the Veteran's degenerative disc disease at L4-5, L5-S1. Accordingly, no referral for extraschedular consideration is warranted. Id. ORDER A rating in excess of 20 percent for degenerative disc disease at L4-5, L5-S1 is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs