Citation Nr: 1039986 Decision Date: 10/25/10 Archive Date: 11/01/10 DOCKET NO. 08-06 588A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a compensable rating for a low back disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1974 to July 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO) which continued a 0 percent rating for residuals of a low back injury. In September 2009, a Travel Board hearing was held before the undersigned. A transcript of that hearing is associated with the claims file. In March 2010, this matter was remanded for further development (to include for a VA examination and treatment records). In October 2010 the Board received further argument from the Veteran. FINDINGS OF FACT 1. Prior to January 2, 2008 the Veteran's service- connected low back disability was not shown to be manifested by forward flexion limited to 85 degrees or less, combined range of motion limited to 235 degrees or less, or muscle spasm, guarding, or tenderness; separately ratable neurological manifestations were not shown; incapacitating episodes of disc disease were not shown; and X-ray confirmed arthritis with painful motion was not shown. 2. From January 2, 2008 the low back disability is shown to have been manifested by localized tenderness (and from July 12, 2010 also by X-ray confirmed arthritis with painful motion); limitation of forward flexion to 60 degrees or less, combined range of thoracolumbar motion to 120 degrees or less, muscle spasm severe enough to result in abnormal gait or abnormal spine contour, separately ratable neurological symptoms, or incapacitating episodes of disc disease are not shown. CONCLUSION OF LAW The Veteran's service connected low back disability warrants a staged increased rating of 10 percent (but no higher), effective January 2, 2008 (but not earlier). 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Codes 5003, 5237, 5242 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (April 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006). In a claim for increase, 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. 2009). An April 2009 letter provided such notice. The claim was readjudicated after further development was completed (and the Veteran had opportunity to respond). See August 2010 supplemental statement of the case. Regarding VA's duty to assist, all available pertinent medical evidence identified by the Veteran has been obtained. He has been examined by VA (including in July 2010, pursuant to the Board's March 2010 remand). The Board finds the July 2010 examination was adequate for rating purposes, as it was based on a review of/familiarity with the pertinent medical history, and the findings included all information necessary for consideration of the applicable criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). VA's duty to assist is met. Criteria, Evidence and Analysis Initially, the Board notes that all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. 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. 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). 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 C.F.R. § 4.7. 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. 38 U.S.C.A. § 5107(b). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings may be appropriate in an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As will be explained below, the Board finds that "staged" ratings are warranted. The RO has now rated the Veteran's service connected low back disability under Code 5237, and the general rating formula for rating diseases and injuries of the spine (General Formula)(outlined below). 38 C.F.R. § 4.71a,. Under the General Formula, 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 apply: 10 percent where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater that 85 degrees; or, combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or 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. 20 percent where forward flexion of the thoracolumbar spine is 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. 40 percent rating for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine. 50 percent rating for unfavorable ankylosis of the entire thoracolumbar spine; 100 percent rating for unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, are to be rated separately, under the appropriate Code. Id., Note (1) (following General Formula). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. Id., Note (2). Favorable ankylosis is fixation of a spinal segment in the neutral position (zero degrees). Id., Note (5). Intervertebral disc syndrome is rated based on ratings for chronic orthopedic manifestations under the General Formula combined with ratings for chronic neurological manifestations or under the Formula for Rating Intervertebral Disc Disease Based on Incapacitating Episodes (outlined below). 38 C.F.R. § 4.71a, Code 5243. 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. A 10 percent rating based on incapacitating episodes requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating requires 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 requires incapacitating episodes with a total duration of at least four weeks but less than six weeks, during the past 12 months. The (maximum) 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. As the Veteran's service-connected low back disability encompasses thoracolumbar spine arthritis, it may alternatively be rated under Code 5003, which provides that arthritis of a major joint (group of minor joints) with limitation of motion less than to a compensable degree under the Code for rating based on limitation of motion warrants a (maximum) 10 percent rating . 38 U.S.C.A. § 4.71a. A December 1996 rating decision granted service connection for residuals of a low back injury rated 10 percent from January, 1992 and 0 percent from July, 1995. The instant claim for increase was filed in May 2006. On July 2006 VA examination, the Veteran reported that he had intermittent low back pain. He denied radicular symptoms, incapacitating episodes, bowel or bladder incontinence, or any need for assistive devices. He used Motrin on an as-needed basis. He had not received any surgical intervention for his low back. Physical examination revealed that he was able to get up from a seated position, walked with a normal-appearing gait, was able to toe raise and heel raise, had painless range of motion of the lumbar spine, did not have muscle spasms or any tenderness to palpation; had 5/5 quadriceps, hamstrings, dorsiflexion, plantar, flexion, EHL function, had 2+ symmetrical deep tendon reflexes of the patella and Achilles tendon bilaterally, had good sensation of the superficial deep peroneal nerve distribution; had negative straight leg raise both in the seated and supine position; and had all ranges of motion normal, without pain or limitations. X-ray examination of the Veteran's lumbar spine revealed mild degenerative disk disease at L5-S1, and some mild facet joint arthropathy. Mild degenerative disc disease of the lumbar spine was diagnosed. The examiner opined: "The ranges of motion during passive, active, and repetitive motions are the same. There is no additional functional impairment due to pain, weakness, fatigability, incoordination, or flare-ups. No assistive devices. There are no incapacitating episodes or radiation of pain, and no neurologic findings or effect on the usual occupation or daily activities." On January 2, 2008 VA examination, the Veteran reported that discomfort with prolonged sitting. He denied using assistive devices. Physical examination revealed that he was able to toe walk and heel walk; lumbar spine flexion was to 90 degrees without pain, extension was to 30 degrees without pain, right bending to 30 degrees without pain, left bending to 30 degrees without pain, right rotation to 30 degrees without pain, left rotation to 30 degrees without pain. On multiple attempts, the Veteran did not exhibit fatigability or decrease in motion. He had negative straight leg raises; he had 2+ reflexes, 5/5 muscle strength. There were no contusions, abrasions, lacerations, erythema, ecchymosis; there was no evidence of scoliosis; and the skin was intact. The Veteran was tender to palpation over the lumbosacral soft tissue; there were no palpable defects or deformities; he was nontender in bony prominences; there was no noted sciatic notch tenderness; X-rays showed that there were no degenerative changes, spondylolisthesis or spondylolysis. The impression was normal lumbar spine exam; no arthritis; X-ray shows Schmorl's nodes at L4/L5 and L5/S1 level; no other significant abnormality or change. The examiner opined: "The ranges of motion during passive, active, and three repetitive motions are the same. There is no additional functional impairment due to pain, weakness, fatigability, incoordination, or flare-ups. No assistive devices. There are no incapacitating episodes or radiation of pain, and no neurologic findings or effect on the usual occupation or daily activities." At the September 2009 Travel Board hearing, the Veteran testified that his service-connected low back disability had increased in severity; he stated that he is more limited in lifting objects, and is unable to jog, swim, bend or have sexual relations. VA treatment records from 2006 to June 2010 include an October 2009 VA MRI which shows degenerative disc disease with disc bulges at L4-5 and L5-S1. On July 12, 2010 VA examination, the Veteran reported increased pain that is generally worsened by prolonged sitting and increased physical activity. He reported daily stiffness and intermittent radiation of pain to bilateral buttocks and thighs. He took Tylenol with codeine or Vicodin at nighttime on average four days per week with improvement. He reported that his activities of daily living were mildly compromised with some difficulty bending to bathe/dress (but did not require assistance). He was last employed (doing inventory) in 2007; the job was terminated for legal issues. He denied experiencing flare-ups or incapacitating episodes. He used a cane in his right hand while in the community, and occasionally at home, for multiple musculoskeletal conditions. Physical examination revealed that the Veteran was able to rise to a standing position without difficulty; was able to heel-to-toe walk without a limp; and had a cane but used it in no meaningful way. His leg lengths were physiologically equal; there was no appreciable sagittal/coronal imbalance; there was no muscle spasm; there was no reproducible paraspinal tenderness; there were no trigger points, sciatic notch tenderness, or reproducible tenderness of the left SI joint with negative Gaenslen test. Straight leg raising and Laseque were negative. Range of motion was 0 to 90 degrees of flexion with painful endpoint, extension 0 to 30 degrees with painful endpoint, lateral flexion 0 to 30 degrees symmetric with painful right endpoint, rotation 0 to 30 degrees symmetric with painful right endpoint; deep tendon reflexes were 1+ equal and symmetric; Iliopsoas/quadriceps/tibialis anterior/exterior hallucis longus/gastrosoleus are 5/5 bilaterally; muscle tone was normal/there was no calf or thigh atrophy. X-ray shows diffuse osteopenia; equivocal narrowing of disc spaces at L4/L5 and possibly L5/S1; multilevel facet joint degenerative changes. Mechanical low back pain syndrome was diagnosed. The examiner noted: "The Veteran performed three repetitions of maximum active lumbosacral spine flexion/extension/lateral flexion/rotation. The Veteran reported endpoint pain during the first repetition in a distribution similar to that described in the physical examination. Pain did not intensify with additional repetitions. Range of motion was unchanged. Weakness/lack of endurance/incoordination are not factors. The Veteran's symptoms can be attributed to the above diagnosis. Likely pain generators are multiple including degenerative disc disease and facet joint arthropathy. Disc bulge on MRI is a radiological finding of no clinical significance. This does not represent an intervertebral disc syndrome." In written argument received by the Board in October 2010 the Veteran expressed disagreement with the July 2010 VA examiner's findings. Prior to January 2, 2008 There is no evidence in the record showing that prior to January 2, 2008 the Veteran's service connected low back disability was manifested by symptoms warranting a compensable rating under any applicable criteria. The July 2006 VA examination report and the records of treatment prior to January 2, 2008 do not show limitation of flexion to 85 degrees or less, combined range of thoracolumbar motion 235 degrees or less, spasm, guarding, tenderness, separately ratable neurological symptoms, or that there were any incapacitating episodes (on examination the Veteran specifically denied incapacitating episodes). Consequently, the schedular criteria for a 10 percent rating under Codes 5237, 5243 were not met. The Board has also considered whether prior to January 2, 2008 the low back disability warranted a compensable rating under any applicable alternate criteria. It is unclear from the record whether or not the X-ray findings on July 2006 VA examination reflect a finding of arthritis. Regardless (conceding for purposes of this decision that they do), the July 2006 examination found that all ranges of motion were normal, and without pain. Consequently, a 10 percent rating under the alternate criteria in Code 5003 also is not warranted. From January 2, 2008 On January 2, 2008 VA examination the examiner noted that on physical examination there was tenderness to palpation over the lumbosacral soft tissue. Inasmuch as the General Formula provides for a 10 percent rating when there is localized tenderness, the criteria for a 10 percent rating are reasonably shown met as of January 2, 2008, and a 10 percent rating from that date is warranted. [Notably, from July 12, 2010 it is also shown- and apparently overlooked on readjudication- that the Veteran has low back arthritis with limitation of motion (i.e., by pain noted at endpoints); consequently a 10 percent rating would also be warranted under the alternate Code 5003 criteria from July 12, 2010.] The analysis progresses to consideration of whether a rating in excess of 10 percent is warranted for any period of time since January 2, 2008. Inasmuch as neither the January 2008 VA examination nor the July 2010 VA examination found limitation of thoracolumbar motion to 60 degrees or less, limitation of combined thoracolumbar spine motion to 120 degrees or less, muscle spasm or guarding severe enough to result in abnormal gait or spine contour, separately ratable neurological symptoms or that the disability was manifested by incapacitating episodes, and because treatment records do not report any such findings, a schedular rating in excess of 10 percent under Codes 5237 or 5243 is not warranted . [And since there is full motion (albeit with pain), the spine is not ankylosed.] As 10 percent is the maximum rating afforded for the Veteran's disability under Code 5003 criteria, an alternate rating in excess of 10 percent under those criteria likewise is not warranted. The Board also has considered whether the Veteran's claim warrants referral for extraschedular consideration. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that schedular criteria are inadequate, i.e., whether there are manifestations of impairment that are not encompassed by the schedular criteria. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the Board must determine whether the claimant's 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 the Veteran's disability picture requires the assignment of an extraschedular rating. Here, comparing the manifestations of the Veteran's service connected low back disability with the applicable schedular criteria, the Board finds that nature of the manifestations and severity of associated impairment shown throughout are wholly encompassed by the schedular criteria. Consequently, the schedular criteria are not inadequate, and referral for consideration of an extraschedular rating is not necessary. Notably, VA examiners have specifically found that the low back disability caused no functional limitations. Although the Veteran is unemployed, it is neither shown by the record, nor alleged, the unemployment is due to the service- connected low back disability. On July 2010 VA examination it was specifically noted that the Veteran's report his employment had been terminated due to "legal issues". Consequently, the matter of entitlement to a total rating based on individual unemployability is not raised by the record. ORDER A "staged" increased rating of 10 percent is granted for the Veteran's service connected low back disability, effective from January 2, 2008, and subject to the regulations governing payment of monetary awards. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs