Citation Nr: 1007476	
Decision Date: 03/01/10    Archive Date: 03/11/10

DOCKET NO.  08-36 327	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, 
Oregon


THE ISSUE

Entitlement to a disability rating in excess of 20 percent 
for service-connected chronic low back disability.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' 
Affairs


ATTORNEY FOR THE BOARD

J. Meawad, Counsel


INTRODUCTION

The Veteran served on active duty from July 2000 to October 
2000.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 2007 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Portland, Oregon, that denied the above claim.


FINDING OF FACT

Even when considering additional limitation of function due 
to pain and weakness, the Veteran's low back disability did 
not result in forward flexion of the thoracolumbar spine of 
30 degrees or less; or unfavorable ankylosis of the entire 
thoracolumbar spine.  The Veteran does not have 
intervertebral disc syndrome and there is no evidence of 
incapacitating episodes as defined by the regulation. 


CONCLUSION OF LAW

A rating in excess of 20 percent for service-connected 
chronic low back disability is not warranted.  38 U.S.C.A. §§ 
1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 
4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

In an August 2001 rating decision, the Veteran was granted 
service connection for a chronic low back disorder and was 
assigned a 10 percent disability rating.  In October 2002, 
the RO granted the Veteran an increased rating of 20 percent.  
The Veteran subsequently requested an increased rating and 
this claim was denied in the June 2007 rating action that is 
the subject of the instant appeal.   

Disability ratings are intended to compensate impairment in 
earning capacity due to a service-connected disorder.  
Separate diagnostic codes identify the various disabilities.  
38 U.S.C.A. § 1155.  It is necessary to evaluate the 
disability from the point of view of the veteran working or 
seeking work, 38 C.F.R. § 4.2, and to resolve any doubt 
regarding the extent of the disability in the veteran's 
favor.  38 C.F.R. § 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.  Consideration of the whole-recorded history 
is necessary so that a rating may accurately reflect the 
elements of disability present.  38 C.F.R. §§ 4.2; Peyton v. 
Derwinski, 1 Vet. App. 282 (1991).  

As is the case here, where entitlement to compensation has 
already been established and an increase in the disability 
rating is at issue, it is the present level of disability 
that is of primary concern.  See Francisco v. Brown, 7 Vet. 
App. 55, 58 (1994).  Nevertheless, where the evidence 
contains factual findings that show a change in the severity 
of symptoms during the course of the rating period on appeal, 
assignment of staged ratings would be permissible.  Hart v. 
Mansfield, 21 Vet. App. 505 (2007).

In determining the disability evaluation, VA has a duty to 
acknowledge and consider all regulations, which are 
potentially applicable, based upon the assertions and issues 
raised in the record and to explain the reasons and bases for 
its conclusion.  Schafrath v. Derwinski, 1 Vet. App. 589 
(1991).

Under 38 C.F.R. § 4.40, functional loss may be due to pain, 
supported by adequate pathology and evidenced by visible 
behavior on motion.  Weakness is as important as limitation 
of motion, and a part that becomes painful on use must be 
regarded as seriously disabled.  Under 38 C.F.R. § 4.45, 
factors of joint disability include increased or limited 
motion, weakness, fatigability, or painful movement, 
swelling, deformity or disuse atrophy.  Under 38 C.F.R. 
§ 4.59, painful motion is an important factor of disability 
from arthritis and actually painful joints are entitled to at 
least the minimum compensable rating for the joint.

Where functional loss is alleged due to pain upon motion, the 
provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered.  
DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  Within this 
context, a finding of functional loss due to pain must be 
supported by adequate pathology, and evidenced by the visible 
behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 
80, 85 (1997).

Disabilities of the spine are rated under the General Rating 
Formula for Diseases and Injuries of the Spine (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
Unfavorable ankylosis of the entire 
spine.............100

Unfavorable ankylosis of the entire 
thoracolumbar 
spine  .....................................................50

Unfavorable ankylosis of the entire 
cervical spine; or, forward flexion of 
the thoracolumbar spine to 30 degrees or 
less; or, favorable ankylosis of the 
entire thoracolumbar 
spine.....................................40

Forward flexion of the cervical spine 15 
degrees or less; or, favorable ankylosis 
of the entire cervical 
spine...............................................
..............30

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....................................................20

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.........................................................10

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.

Formula for Rating Intervertebral Disc 
Syndrome Based on Incapacitating 
Episodes

With incapacitating episodes having a 
total duration of at least six weeks 
during the past 12 months.............60

With incapacitating episodes having a 
total duration of at least four weeks but 
less than six weeks during the past 12 
months...................................
.......................40

With incapacitating episodes having a 
total duration of at least two weeks but 
less than four weeks during the past 12 
months...................................
.......................20

With incapacitating episodes having a 
total duration of at least one week but 
less than two weeks during the past 12 
months...................................
.......................10

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.  

38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243.

The Veteran's back disability has been evaluated as 20 
percent disabling under Diagnostic Code 5237.  In order to 
meet the criteria for a higher, 40 percent, rating under the 
general formula, the evidence must show, or more nearly 
reflect, forward flexion of the thoracolumbar spine to 30 
degrees or less; or, favorable ankylosis of the entire 
thoracolumbar spine.  38 C.F.R. § 4.71a, Diagnostic Codes 
5235 to 5243.  The evidence, however, does not show that the 
Veteran's spine is limited to 30 degrees forward flexion or 
is ankylosed, either favorably or unfavorably.  

In a letter from the Veteran's private chiropractor dated 
January 2007, the Veteran was reported to have reasonably 
good range of motion of the lumbar spine.  During the 
November 2006 VA examination, the Veteran's forward flexion 
following repeated movements was to 40 degrees with pain 
beginning at 25 degrees.  Limitation after repetitive use was 
to 45 degrees.  A VA examination in October 2008 revealed 
forward flexion of 40 degrees with pain beginning at 20 
degrees, with no additional loss after repetitive use.  In 
May 2009, the Veteran was afforded another VA examination, 
which revealed forward flexion of 65 degrees following 
repetitive motion with pain noted on active motion, but no 
additional limitation.  

From the above findings, a higher rating is not warranted 
based on limitation of motion as forward flexion of the 
thoracolumbar spine is not limited to 30 degrees or less nor 
is there favorable ankylosis of the entire thoracolumbar 
spine shown throughout the appellate period.  

The Board again recognizes the application of 38 C.F.R. §§ 
4.40 and 4.45, and DeLuca, supra.  However, higher 
compensation is not warranted under these provisions.  The VA 
examinations show that the Veteran had pain after repetitive 
movement.  However, the evidence of record does not show that 
the Veteran had additional limitation of motion or functional 
loss of the lumbar spine resulting from pain that would 
warrant a higher rating as the pain and functional loss do 
not result in or approximate 30 degrees forward flexion or 
favorable ankylosis of the lumbosacral spine.  The range of 
motion recorded during the November 2006 and May 2009 VA 
examinations already considered repetitive motion and pain 
with repetitive use and the October 2008 examiner noted that 
there was no additional loss of motion on repetitive use.  In 
addition, there is no indication of record of any functional 
loss with repetitive movements.  Therefore, as the Veteran's 
20 percent rating is based on the reported range of motion 
that already considered any additional limitation based on 
repetitive motion and pain, a higher rating is not warranted 
based on the criteria in 38 C.F.R. §§ 4.40 and 4.45, and 
DeLuca.  

The criteria for Diagnostic Codes 5235 to 5243 also require 
evaluating associated neurologic abnormalities separately.  
During the November 2006, October 2008, and May 2009 VA 
examinations, the Veteran was found to have no neurological 
abnormalities.  Therefore, in the absence of objective 
medical evidence of neurological abnormalities, separate 
ratings are not warranted.

Finally, the rating criteria for the lumbar spine also 
provide for rating intervertebral disc syndrome based on 
incapacitating episodes.  Although the record contains 
complaints from the Veteran of muscle spasms, VA examinations 
have consistently shown that the Veteran does not have 
intervertebral disc syndrome and there is no evidence of 
incapacitating episodes as defined by the regulation.

The Veteran's lay statements as to the frequency and severity 
of his symptoms have been considered.  However, the Board 
attaches greater probative weight to the clinical findings of 
skilled medical professionals.  

In deciding the Veteran's increased evaluation claim, the 
Board has considered whether the Veteran is entitled to an 
increased evaluation for separate periods based on the facts 
found during the appeal period.  The Board does not find 
evidence that the Veteran's chronic low back disability 
should be increased for any separate periods based on the 
facts found during the whole appeal period.  The evidence of 
record in connection with this claim supports the conclusion 
that the Veteran is not entitled to additional increased 
compensation during any time within the appeal period.

In sum, the Board finds that the preponderance of the 
evidence indicates that the Veteran's disability picture most 
nearly approximates the criteria required for the currently 
assigned 20 percent rating, and that an increased rating is 
therefore not warranted.

The evidence in this case is not so evenly balanced so as to 
allow application of the benefit-of-the-doubt rule as 
required by law and VA regulations.  38 U.S.C.A. § 5107(b); 
38 C.F.R. § 3.102.  The preponderance is against the 
Veteran's claim and it must be denied.

Notice and Assistance

Upon receipt of a complete or substantially complete 
application for benefits and prior to an initial unfavorable 
decision on a claim by an agency of original jurisdiction, VA 
is required to notify the appellant of the information and 
evidence not of record that is necessary to substantiate the 
claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; 
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 
F.3d 1328 (Fed. Cir. 2006).  The notice should also address 
the rating criteria or effective date provisions that are 
pertinent to the appellant's claim.  Dingess v. Nicholson, 19 
Vet. App. 473 (2006).

For an increased-compensation claim, section 5103(a) 
requires, at a minimum, that the Secretary (1) notify the 
claimant that to substantiate a claim, the claimant must 
provide, or ask the Secretary to obtain, medical or lay 
evidence demonstrating a worsening or increase in severity of 
the disability and the effect that worsening has on the 
claimant's employment; (2) provide examples of the types of 
medical and lay evidence that may be obtained or requested; 
(3) and further notify the claimant that "should an increase 
in disability be found, a disability rating will be 
determined by applying relevant [DC's]," and that the range 
of disability applied may be between 0% and 100% "based on 
the nature of the symptoms of the condition for which 
disability compensation is being sought, their severity and 
duration, and their impact upon employment."  Vazquez-Flores 
v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds 
sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 
2009).

Complete notice in accordance with Vazquez-Flores was sent in 
November 2006 and October 2008 and the claim was 
readjudicated in a November 2008 statement of the case and a 
June 2009 supplemental statement of the case.  Mayfield, 444 
F.3d at 1333.

VA has obtained service treatment records, assisted the 
appellant in obtaining evidence, afforded the appellant 
physical examinations, and obtained medical opinions as to 
the etiology and severity of disabilities.  All known and 
available records relevant to the issues on appeal have been 
obtained and associated with the appellant's claims file; and 
the appellant has not contended otherwise.  

VA has substantially complied with the notice and assistance 
requirements and the appellant is not prejudiced by a 
decision on the claim at this time.


ORDER

Entitlement to a disability rating in excess of 20 percent 
for service-connected chronic low back disability is denied.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs