Citation Nr: 1111700 Decision Date: 03/23/11 Archive Date: 04/05/11 DOCKET NO. 06-35 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for residuals of a low back injury with history of left sided herniation, L4-5. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from May 12, 1977, to May 11, 1980, and from May 23, 1980, to February 25, 1984. He also served in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Hartford, Connecticut. The Board notes that the Veteran requested a hearing before a decision review officer of the RO in connection with the current claim. The requested hearing was scheduled and subsequently held in January 2007 at the Hartford RO. A transcript of the hearing has been associated with the Veteran's claims file. In November 2009, the appeal was REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. for additional VA examination. The case has been returned for review by the Board. During the pendency of this appeal, by rating action dated in December 2010, the RO increased the disability rating for the Veteran's low back disability to 20 percent, effecting as of January 31, 2005, the date of his claim. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned, therefore, the issue remains in appellate status. FINDING OF FACT The Veteran's lumbar spine disability has been primarily manifested by pain on use with lumbar spine flexion that has varied from 50 to 75 degrees without evidence of ankylosis. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 20 percent for the lumbar spine disability are not met. 38 U.S.C.A §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in February 2005, March 2006, and March 2010, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159(b) (2010). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The RO also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim arises from his disagreement with the initial disability rating assigned following the grant of service connection. Once service connection is granted, the claim is substantiated and additional notice is not required. Thus any defect in the notice provided to the veteran is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2010) and 38 C.F.R. § 3.159(c) (2010). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Veteran has been medically evaluated in conjunction with his claims. Thus, the duties to notify and assist have been met. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria 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 (2010). 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 (2010); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Veteran is appealing the initial assignment of a disability rating, and as such, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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 an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. 4.6 (2010). Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2010). 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 (2010) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2010). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2010). The Veteran's lay statements and testimony are considered competent evidence when describing his symptoms of disease or disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). But his lay statements and testimony regarding the severity of his symptoms must be viewed in conjunction with the objective medical evidence of record and the pertinent rating criteria. The ultimate probative value of his lay testimony and statements is determined not just by his competency, but also his credibility to the extent his statements and testimony concerning this is consistent with this other evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See, too, 38 C.F.R. § 3.159(a)(2). VA regulations provide that arthritis due to trauma, substantiated by X-ray findings, shall be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. 38 C.F.R. § 4.71a, Diagnostic Code 5003, pertaining to degenerative arthritis (degenerative joint disease) provided that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. In this case, a May 2010 VA X-ray report noted multilevel osteoarthritic disease with moderate foraminal stenosis and mild central canal narrowing. The Veteran's low back disability may be rated under Diagnostic Code 5237 which provides the rating criteria for a lumbosacral strain. This diagnostic code provision refers to the criteria contained in the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2010). The Veteran's low back disability may also be rated under Diagnostic Code 5243 for intervertebral disc syndrome which is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine 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 disability 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 disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. The maximum 100 percent disability rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237 (2010). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a maximum 60 percent disability rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent disability rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 20 percent disability rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2010). It is noted that for purposes of rating 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. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2010). The Board does not find that the Veteran's lumbar spine disability more closely approximates the criteria required for the assignment of a disability rating greater than 20 percent when rated under Diagnostic Code 5237. At the September 2005 spine examination, the Veteran's forward flexion was from zero to 75 degrees. Extension was zero to 20 degrees; lateral bending, bilaterally, was zero to 30 degrees, and rotation was zero to 70 degrees, bilaterally. At the May 2010 VA examination, the examiner indicated that flexion was from zero to 50 degrees; extension was zero to 20 degrees; lateral flexion, bilaterally, was zero to 30 degrees; and rotation was zero to 30 degrees, bilaterally. With regard to muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, there has been no evidence of muscle spasm. The examinations reports indicate that his posture was erect. Additionally, there was no objective evidence of weakness, tenderness, guarding, postural abnormalities, fixed deformity or musculature abnormality. Furthermore, there has never been any evidence of reversed lordosis, or abnormal kyphosis. As such, entitlement to a disability rating in excess of 20 percent for his lumbar spine disability under Diagnostic Code 5237 is not warranted. The Board notes that at the May 2010 VA examination, the Veteran reported left lower extremity radiculopathy. However, there was no objective evidence of neurological manifestations of the low back disability. The sensory and motor examinations were within normal limits. Strength was 5/5. The reflexes were 2+ and symmetrical. Most importantly, the Lasegue's sign has been negative, bilaterally. Lasegue's sign or test, in sciatica, flexion of the hip is painful when the knee is extended, but painless when the knee is flexed. This distinguishes the disorder from disease of the hip joint. Dorland's Illustrated Medical Dictionary, 1523, (27th ed. 1988). As such a separate disability rating for neurological manifestations such as radiculopathy is not warranted. The Board has also considered Diagnostic 5243 as to the total duration of incapacitating episodes over the preceding 12 months. However, there is no evidence that any physician prescribed bed rest for the Veteran's lumbar spine disability during the relevant time period. As such, a disability rating greater than 20 percent under Diagnostic Code 5243 is not warranted. In regard to pain, the Board notes that the General Rating Formula for Diseases and Injuries of the Spine contemplates symptoms such as pain. At the May 2010 VA examination, the Veteran reported that he experienced persistent and constant gluteal pain. However, the VA motion studies were conducted with no significant pain noted. There was no additional loss of motion from fatigue, weakness, or lack of endurance following repetitive motion. After consideration of all of the evidence, the Board finds that the preponderance of the evidence is against the claim for the assignment of a higher disability rating. The Board has considered the statements of the Veteran as to the extent of his current symptoms. He is certainly competent to report that his symptoms are worse. Layno, 6 Vet. App. at 470. However, in evaluating a claim for an increased schedular disability rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Accordingly, the Board finds that overall disability picture most closely approximates the criteria for a 20 percent disability rating. As noted above, based upon the guidance in Fenderson, the Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran's symptoms remained relatively constant throughout the course of the period on appeal and, as such, staged ratings are not warranted. Extra-schedular Consideration Finally, the Board finds that the Veteran's low back disability does not warrant referral for extra-schedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extra-schedular consideration. The level of severity of the Veteran's low back disability is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER An initial disability rating in excess of 20 percent for residuals of a low back injury with history of left sided herniation, L4-5, is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs